         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 11, 2001

              STATE OF TENNESSEE v. COURTNEY ANDERSON

                Direct Appeal from the Criminal Court for Shelby County
      No. 97-09924, 97-01093-97, 97-08272-73, 97-09654-60  Joseph B. Dailey, Judge



                   No. W2000-02071-CCA-R3-CD - Filed August 13, 2001



The Appellant, Courtney Anderson, was indicted by a Shelby County Grand Jury on multiple counts
of theft of property, forgery, and one count of misdemeanor possession of a handgun. Under the
terms of a plea agreement, Anderson pled guilty to a reduced number of the charged offenses and
was sentenced to an extended term in the Department of Correction. The resulting convictions
reflect class C, D and E grade felony offenses. The trial court found Anderson to be a career
offender for all convictions and ordered consecutive sentences. In this appeal, Anderson contends
that the effective sentence imposed by the trial court is excessive. After review, we find that
Anderson’s designation as a career offender for the class C felony convictions was error.
Furthermore, we are unable to reconcile the effective sentence pronounced by the trial court with the
sentences reflected by the judgment of conviction documents presented on appeal. Accordingly, we
remand for clarification or correction of the sentence imposed and for resentencing on the class C
felony convictions.


       Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH, J. and ALAN E.
GLENN, J., joined.

William L. Johnson, Memphis, Tennessee, for the Appellant, Courtney Anderson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; Amy Weirich, Assistant District Attorney General, for the
Appellee, State of Tennessee.
                                            OPINION

                                      Factual Background

        During the eleven-month period between April 1996 and February 1997, the Appellant, by
means of forgery, fraudulently obtained personal credit cards, cash, jewelry, car rentals, apartment
leases and other numerous services and property. See Appendix A. As a result of these unlawful
activities, the Appellant was indicted by a Shelby County Grand Jury on eight counts of felony theft
of property, seventeen counts of forgery and one count of misdemeanor possession of a handgun in
a public place. The Appellant proceeded to trial on one count of class C theft and one count of
forgery. Following his jury conviction for these offenses, he received consecutive sentences of
fifteen years for theft as a persistent offender and six years for forgery as a career offender. See
Appendix A (97-08497; 97-08498). After his convictions were affirmed by this court on direct
appeal, the Appellant negotiated a plea agreement on the remaining charges. See State v. Coutney
Anderson, No.W2000-00244-CCA-R3-CD (Tenn. Crim. App. at Jackson, Jan. 30, 2001).

       Prior to the sentencing hearing, the State filed notice of its intent to seek enhanced
punishment “as a multiple offender pursuant to Tenn. Code Ann. § 40-35-106, a persistent offender
pursuant to Tennessee Code Annotated, 40-35-108, as applicable.” Attached to the notice was a
compilation of the Appellant’s prior record of indictments with the dates and courts of conviction.
In addition, the State attached to this form supporting documents which included the respecitve
indictment and judgment of conviction for each listed conviction. We note, however, that the State’s
compiled list of convictions cannot be reconciled with the supporting documents, e.g., the number
of convictions and the class of convictions are in dispute and a number of the indictments are not
supported by proof of a conviction. See Appendix B.

       A sentencing hearing was held on July 21, 2000. The following colloquy occurred at the
hearing.

       ASSISTANT DISTRICT ATTORNEY: . . . According to my records, he should be
       facing sentencing today on ten E felonies. It’s the State’s position that he is career
       on those; six D felonies; four C felonies; and one A misdemeanor. And, again,
       according to the proof that we have submitted, he would be career on all those
       felonies.

       COURT: Including the C felonies?

       ASSISTANT DISTRICT ATTORNEY: Yes.
       ...

       COURT: . . .Do you take issue to that, Mr. Johnson?




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         MR. JOHNSON: No, Your Honor, we have had an opportunity to count them and we
         counted them again this morning to make sure that we had them all covered. We do
         not take issue with that, Your Honor.1

         COURT: So there’s no question, then, that on his four C felonies he will receive 15
         years at 60 percent; his six D felonies, 12 years at 60 percent in each one; and his ten
         E felonies, six years at 60 percent; and on the A misdemeanor, 11 months, 29 days
         is going to be the sentence on that based on his prior record. So the only question
         remaining is whether they are to be served concurrently or consecutively or some
         combination thereof.

         At the conclusion of the hearing, the trial court found the Appellant to be a career offender
for all class C, D, and E felony convictions. The record confirms the trial court’s finding that the
Appellant is a career offender with respect to the class D and E felonies.

        With respect to class C felonies, a defendant may be sentenced as a “career offender,”if he
has “[a]ny combination of six (6) or more class A, B, or C prior felony convictions.” Tenn. Code
Ann. § 40-35-108(a)(1). Our review of the record indicates that the Appellant has only three prior
class C felony convictions. See Appendix B. Because the Appellant was found to be a career
offender for all class C felony convictions, no sentencing hearing was conducted as the maximum
sentence for the offense was the only sentence available. Accordingly, on remand, a sentencing
hearing will be necessary to determine the Appellant’s appropriate sentence as a range III, persistent
offender, with respect to the class C felonies.

         At the conclusion of the sentencing hearing, the trial court initially imposed an effective
sentence of “171 years and 11 months and 29 days.” This sentence was later modified to “an
effective sentence of 168 years, 11 months and 29 days, based upon the State’s recalculat[ion]” of
the sentences. On appeal, the Appellant asserts that he was sentenced to “168 years 11 months 29
days consecutive to 21 years for a total of 189 years and 29 days. The State, on appeal, contends that
the trial court sentenced the Appellant “to serve an effective sentence of 162 years 11 months and
29 days.” Our calculation from the record before us suggests the Appellant received an effective
sentence of 141 years 11 months 29 days. See Appendix A. To further compound the confusion,
the State announced at the sentencing hearing that the Appellant was entering 21 guilty pleas, i.e.,
ten E felonies, six D felonies, four C felonies and one A misdemeanor. On appeal, the State asserts
that the Appellant “pled guilty to at least 19 offenses.” The State acknowledged, however:




         1
           Generally, failure to timely object to an error at trial precludes review of the error on a ppeal. See Tenn. R.
App. P . 36(a); see also Waterhouse v. Perry , 260 S.W.2d 176 (Tenn. 1953) (a party cannot complain of a situation as
error when he, himself, created the situation). The error cannot be ignored or considered waived, however, when the
error results in an illegal sentence. “[A] judgment imposed by a trial court in direct contravention of express statutory
provisions regarding sentencing is illegal and is subject to being set aside at any time, even if it has become final.” State
v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987) (citing State v. Burkhart, 566 S.W.2d 871, 87 3 (Tenn. 1978).

                                                            -3-
       There are only 19 judgment forms in the technical record. (I, 1-47; 122-140). Based
       solely on those judgment forms, the State calculates that Anderson’s effective
       sentence is properly calculated at 141 years, 11 months, 29 days, taking into
       consideration the concurrent and consecutive sentences on such judgment forms. If
       case numbers 97-09658 & 59 are two cases Anderson was previously tried and found
       guilty on, as indicated in page 8 of the sentencing hearing transcript, obviously they
       will not affect this sentence. However, if those case numbers are a part of this plea,
       as indicated on pp.2 and 3 of the sentencing hearing transcript, and the judgment
       forms were left out of the record, they could change the above calculation.

                                          CONCLUSION

        For the foregoing reasons, we find that the Appellant’s classification as a career offender for
his class C felony convictions was error. Furthermore, we are unable to determine from the record
the number of convictions entered in this case or the effective sentence arising from the convictions.
Accordingly, we remand for clarification or correction of the respective sentences imposed and for
resentencing with respect to the Appellant’s class C felony convictions.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -4-
                                APPENDIX A
               Current Offenses as Sentenced by the Trial Court
            (As grouped by the prosecutor at the sentencing hearing)

Group 1

 Case #     Date          Offense        Class          Sentence       Manner
 97-01093   7-2-00        Theft          D              12 years       Consecutive
 97-01094   7-2-00        Theft          D              12 years       Consecutive
 97-01095   7-2-00        Forgery        E              6 years        Consecutive
 97-01096   7-2-00        Forgery        D              12 years       Consecutive
 97-01097   7-2-00        Forgery        D              12 years       Consecutive


Group 2

 97-06852   7-2-00        Forgery        E              6 years        Concurrent
                                                                       97-06853
 97-06853   7-2-00        Forgery        E              6 years        Concurrent
                                                                       97-06852
 97-06854   7-2-00        Forgery        E              6 years        Consecutive
 97-06855   7-2-00        Forgery        D              12 years       Consecutive
 97-06856   7-2-00        Forgery        E              6 years        Consecutive
 97-06857   7-2-00        Theft          E              6 years        Consecutive



Group 3

 97-08272   7-2-00        Forgery        E              6 years        Consecutive
 97-08273   7-2-00        Forgery        D              12 years       Consecutive




                                      -5-
Group 4

 97-09654        7-2-00         Theft           C               15 years        Concurrent
                                                                                97-09655
 97-09655        7-2-00         Forgery         C               15 years        Concurrent
                                                                                97-09654
 97-09656        7-2-00         Forgery         E               6 years         Consecutive
 97-09657        7-2-00         Forgery         E               6 years         Consecutive
 97-09660        7-2-00         Forgery         E               6 years         Consecutive


Group 5

 97-09924        7-2-00         Possession      A               11 months 29    Consecutive
                                Weapon          misdemeanor     days


Prior convictions stemming from jury trial but occurring within the same time-frame as Groups 1
through 5

 97-08497        12-3-99        Forgery         E               6 years         Consecutive
 97-08498        12-3-99        Theft           C               15 years        Consecutive




                                             -6-
                                        APPENDIX B

                                   Prior Criminal History
Case #                             Offense                                            Class
 93-01620                          Motor Vehicle - Habitual                           E
 92-11377                          Theft over $1,000                                  D
 Illegible Case Number             Forgery                                            E
 ***                               Forgery                                            E
 92-11375                          Forgery over $500                                  E
 92-11374                          Forgery over $500                                  E
 92-11373                          Forgery over $500                                  E
 92-02804                          Theft over $10,000                                 C
 92-02803                          Theft over $1,000                                  D
 90-12843                          Theft over $10,000                                 C
 93-00146                          Theft over $1,000                                  D
 90-13173                          Theft over $1,000                                  D
 90-16350                          Forgery over $500                                  E
 90-16351                          Forgery over $500                                  E
 90-16352                          Forgery over $500                                  E
 90-16353                          Forgery                                            E
 *** 92-02802                      Indictment charges theft over $10,000              C
 Indiana Charge                    Forgery

        *** We did not consider these indictments, as no judgment sheets were found in the record
to reflect whether a conviction was entered.




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