                                                                                          04/25/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               January 16, 2019 Session

         STATE OF TENNESSEE v. BOBBY EUGENE BLAYLOCK

                Appeal from the Circuit Court for Cheatham County
                        No. 18305 David D. Wolfe, Judge
                     ___________________________________

                           No. M2017-02136-CCA-R3-CD
                       ___________________________________


Following a trial, a jury convicted Defendant, Bobby Eugene Blaylock, of kidnapping,
aggravated kidnapping, attempted rape, robbery, and theft valued at more than $1,000 but
less than $2,500, for which the trial court imposed a total effective sentence of forty-four
years’ incarceration. On appeal, Defendant asserts that the trial court erred by failing to
find that the mitigating factor found in Tennessee Code Annotated section 39-13-
304(b)(2) applied to Defendant’s case. The State cross-appeals, arguing that the trial
court erred by finding that the State’s “Notice of Defendant’s Status as a Repeat Violent
Offender” (the “State’s Notice”) was deficient and by failing to sentence Defendant as a
repeat violent offender. Following a thorough review, we modify Defendant’s sentence
for aggravated kidnapping to life without possibility of parole. We remand for the entry
of an amended judgment sentencing Defendant, as a repeat violent offender, to life
without possibility of parole in Count 2 and for the trial court to impose a sentence on the
merged conviction of kidnapping in Count 1. In all other respects, we affirm the
judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed as
                            Modified and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

James L. Baum, Pegram, Tennessee, for the appellant, Bobby Eugene Blaylock.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Ray Crouch, District Attorney General; and Kristin Kyle-Castelli and
Doug Thurman, Assistant District Attorneys General, for the appellee, State of
Tennessee.
                                              OPINION

                             Factual and Procedural Background

       This appeal arises from an incident that occurred at the Cheatham State Wildlife
Management Area in April 2015. The facts of the case, taken from Defendant’s
presentence report, are as follows:1

               Deputies of the Cheatham County Sheriff’s Office were dispatched
        at 1:48 p.m. to [a residence on] Dry Creek Road in Ashland City,
        Tennessee after the homeowner call[ed] 911 to report a woman coming to
        his home [who] reported to have been raped. Deputies arrived to find [the
        victim] present with duct-tape on her wrists, clothing extremely disheveled
        and obvious injuries to the face and head regions. [The victim] told
        deputies that her cousin, [Defendant], had assaulted her, duct-taped her and
        raped her while they were in the game reserve about one-fourth of a mile
        from the aforementioned residence. Deputies were able to locate the crime
        scene by identifying items of evidence in the approximate area described by
        [the victim].

               Special Agent Boyd responded to the Tri-Star/Centennial Hospital in
        Ashland City, Tennessee at 4:17 p.m. to further interview [the victim] who
        was being treated at the said facility. [The victim] stated that she and her
        cousin, [Defendant], went to Nashville on the morning of April 3, 2015, to
        purchase tacos and alcohol prior to [Defendant] surrendering himself to the
        Cheatham County Sheriff’s Office on a warrant regarding a violation of the
        sex offender registry. [The victim] stated that after returning from
        Nashville, they went to the Cheatham Wildlife Management area off of Dry
        Creek Road to eat and drink. [The victim] stated that while there,
        [Defendant] choked her twice until she passed out, punched her repeatedly
        in the face and head, restrained her wrists together with duct-tape, and . . .
        wrapped duct-tape around her mouth and head. [The victim] continued to
        describe how [Defendant] bent her over in the 1997 Green Ford Expedition,
        raped her repeatedly by digitally penetrating her both vaginally and anally,
        attempting to penetrate her with his penis both vaginally and anally, and
        penetrating her with a bottle. [The victim] also stated that during this
        incident, [Defendant] threatened her with a metal crow-bar type instrument

        1
         The record on appeal does not include transcripts of Defendant’s trial. The State introduced the
presentence report as an exhibit at Defendant’s sentencing hearing without objection by Defendant.
                                                  -2-
he was holding. [The victim] further described how [Defendant] duct-taped
her to a tree, stole her vehicle, including her wallet that was inside
containing approximately $400.00 in cash. The Cheatham County Sheriff’s
Office had an active warrant on [Defendant] for [a] sex offender
registration violation that was entered into the National Crime Information
Center (NCIC). [Defendant] was located and arrested by the Metropolitan
Nashville Police Department on the morning of April 4, 2015, while
driving the stolen Ford Expedition vehicle. The M.N.P.D. charged
[Defendant] with vehicle theft between $10,000 and $60,000, unlawful
possession of drug paraphernalia, and driving without a license. He was
book[ed] in the Davidson County Criminal Justice Center with a $75,000
bond. The Cheatham County Sheriff’s Office placed a “hold” on
[Defendant] for a bond hearing on the violation warrant.

       On April 4, 2015, Special Agents Joseph Boyd and Steven Kennard
and Detective Miller interviewed [Defendant] at the Davidson County
Criminal Justice Center. During the interview, [Defendant] admitted to
taping [the victim’s] hands and mouth, taping her to a tree, and punching
her repeatedly and stealing her truck, however, he denied raping [the
victim] and threatening her with a crow-bar/tire-iron.

       On April 4, 2015, Special Agent Boyd and Detective Miller
conducted a search of the 1997 Ford Expedition with the verbal consent of
[the victim] while the vehicle was in the custody of the M.N.P.D. and
located at the Metro Impound Lot at 1201 Freightliner Drive in Nashville.
This verbal consent was followed by written consent obtained subsequently
by Special Agent Boyd. Special Agent Boyd took photographs of this
search including all items of evidence recovered. Notable items identified
and/or recovered include a metal tire tool similar in appearance to a crow-
bar located in between the front driver’s seat and the center console, one
piece of gray duct-tape, and one empty duct-tape roll.

       On April 6, 2015, Special Agent Boyd received documentation from
the T.B.I.’s Tennessee Fusion Center detailing [Defendant’s] history
including criminal history. Around 1995 in Kansas, [Defendant] was
charged with rape and convicted of aggravated indecent liberties with a
child (13 year old victim) and sentenced to 51 months. Around 1997, in
Oklahoma, [Defendant] was convicted of [three] counts of first degree rape,
assault, and battery with a dangerous weapon (17 year old victim) and
sentenced to cumulative 35 years for which he was released in 2011.

                                   -3-
       [Defendant] returned to Kansas to serve out remaining time on a probation
       violation until he moved to Tennessee in 2013.

       The Cheatham County Grand Jury subsequently issued a presentment, charging
Defendant with especially aggravated kidnapping, aggravated rape, aggravated robbery,
and theft of property valued at $1,000 or more but less than $10,000 for the offenses
against the victim in case number 17845. On September 13, 2015, the State filed a
Notice of Impeachment Pursuant to [Tennessee Rule of Evidence] 609 and a Notice to
Seek Enhanced Punishment as Persistent/Career (Range III) Offender. The District
Public Defender’s Office was initially appointed to represent Defendant, but after it
withdrew from the case on January 12, 2016, new defense counsel was appointed to
represent Defendant. On May 23, 2017, the State’s Notice was filed.

       On July 6, 2017, the grand jury issued a superseding presentment, charging
Defendant with especially aggravated kidnapping, aggravated kidnapping, aggravated
rape, aggravated robbery, and theft of property valued at more than $1,000 but less than
$2,500 in case number 18305. At an August 30, 2017 motion hearing, the State entered a
nolle prosequi as to case number 17845 and asked the trial court to “incorporate the file
from the initial [i]ndictment . . . into the superseding indictment which is case number
18305[,]” to which the trial court replied, “All right.” Following a trial on September 5,
2017, a jury found Defendant guilty of kidnapping, aggravated kidnapping, attempted
rape, robbery, and theft of property valued at more than $1,000 but less than $2,500.

      At a sentencing hearing conducted October 11, 2017, the State introduced
Defendant’s presentence report, along with certified judgments of conviction from
Oklahoma showing that Defendant had been convicted of three counts of first degree rape
and one count of assault and battery with a dangerous weapon and that Defendant was on
supervised probation out of Oklahoma at the time he committed the instant offenses.
Additionally, the State presented evidence that Defendant had been convicted of
aggravated indecent liberties with a child in Kansas. The victim then read a victim
impact statement, detailing the devastating effect Defendant’s crimes had on her life.

       At the close of proof, Defendant argued that the State had not given proper notice
of his status as a repeat violent offender, arguing that the notice provided the “nature of
the prior conviction offenses” but did not “set forth the dates of prior periods of
incarceration.” Defendant further asserted that the State “never gave notice on the
superseding indictment[,]” which added aggravated kidnapping to the list of charges
against Defendant. The State responded that it incorporated the court file in case number
17485 into the instant case before the trial. Further, the State asserted that it



                                           -4-
       corresponded with [defense counsel] on January 9th of 2017 and informed
       [defense counsel] that the State would be pursuing the information to see if
       [Defendant] would qualify under the repeat violent offender [statute]. On
       May 23rd, 2017, after . . . plea negotiations fell through, the State gave
       additional notice and additional time for [defense counsel] and [Defendant]
       prior to the filing of this notice which would foreclose all possible
       settlement. The Defense was on notice as of January 9th, 2017, the first
       date, that this D.A. was representing the State of Tennessee on this case.

              So it falls short of saying that they were not on notice of the State’s
       intent to do so, and the delay on the notice was actually a delay in the
       attempt to see if plea negotiations could occur.

The State noted that there was no objection from Defendant prior to trial of insufficient
notice and argued that the Defendant “understood from the get-go that . . . the State
would be pursuing a repeat violent offender status on [Defendant].”

       The trial court determined that Defendant met the qualifications of a repeat violent
offender based on the prior convictions listed in the State’s Notice; nonetheless, the trial
court concluded that, because the State’s notice was deficient, it could not consider those
convictions to sentence Defendant as a repeat violent offender. The trial court stated:

              For the record . . . this Court does find that the proof has established
       that there were two qualifying convictions and that this Defendant did in
       fact serve two separate periods of incarceration, one in Oklahoma and one
       in Kansas. And that those qualifying convictions would indicate that he
       would be a repeat violent offender.

              However, when I look at the statute 40-35-120 of the Tennessee
       Code I am required to look at the notice requirement. There has been an
       objection raised under that, and under that section, which I am quoting,
       under (i)(2) of that section, “The District Attorney General shall file a
       statement with the Court and the Defense Counsel within 45 days of the
       arraignment pursuant to Rule Ten of the Rules of Criminal Procedure that
       the Defendant is a repeat violent offender.” That is the notice requirement
       and that deals with the timeliness issue, and that has been one issue that’s
       been raised.

              I think the [State] is right that the timeliness issue is one that can be
       cured because you are entitled to a delay or a continuance if in fact that
       timeliness becomes an issue, and it would result in at least an entitlement to
                                            -5-
a continuance by the case law. And it says that in the statute, “If the notice
is not filed within 45 days, the Defendant shall be granted a continuance so
the Defendant will have 45 days between receipt of the notice and trial.”

        When you go on then to look at the other part of that notice
requirement, it says that, “The statement shall set forth the dates of the prior
periods of incarceration as well as the nature of the prior conviction
offenses.” And then the argument is made as to whether or not the notice
that’s been made in this case is deficient or does it satisfy the requirements.

       The case that I am relying upon, for the record, is the State v. Cooper
[321 S.W.3d 501 (Tenn. 2010)], which is a Tennessee Supreme Court
decision that was issued September 21st, 2010. In that case it was the same
basic issue that was raised about the sufficiency of the notice and whether
the notice itself was sufficient or deficient.

       The . . . Trial Court found that there were qualifying convictions and
that there were two periods of incarceration that were met, and went ahead
and found that the notice was cured by the post filing of a document called
The Sentencing Position by the District Attorney.

         And . . . the Supreme Court basically said that, and I want to look at
the language so that I can be sure of this. In that case the record says that,
“The record established that what occurred at the trial, contrary to the
mandate of the Tennessee Code Annotated, the pre-trial filing on May 12th,
2003 failed to state that Mr. Cooper was a repeat violent offender. The pre-
trial filing also failed to set forth the nature of the sodomy conviction as a
qualifying prior conviction and the dates of the prior period of
incarceration, both of which are required under section 40-35-120(i)(2). As
a result of these omissions, the May 12th, 2003 filing did not qualify as
notice pursuant to the repeat violent offender statute. The failure to file this
notice prior to trial breached a clear and unequivocal rule of law that post-
trial filings of the Sentencing Position failed to cure. Moreover, there’s no
indication that Mr. Cooper waived the issue [for] tactical reasons.
Accordingly, the first, second and fourth criteria for plain error have been
established.”

       They then go on to talk about whether that adversely affected a
substantial right, and then they reversed it to send it back for sentencing
because of the fact that that notice did not comply.

                                     -6-
               So when I look at the record in this case, the Pre-Sentence Notice,
        even doing away with the issue of the timeliness, the notice cites the rape
        convictions in the State of Oklahoma and then gives a sentence of 25 years.
        What I’m referring to is the [State’s] Notice. It clearly puts the Defendant
        on notice that the State is pursuing a repeat violent offender. And it goes
        further to say that it was three qualifying convictions for rape, and then it
        sets out that the sentence was 25 years.

               Reading this case and the statute together, it appears that [the notice]
        must also contain the qualifying convictions and the periods of
        incarceration, and the State v. Cooper indicates that the failure to include
        the actual periods of incarceration disqualifies this as a proper notice.

               So therefore, the Court finds that the notice that was filed in this case
        for a repeat violent offender does not meet the criteria of the statute and []
        Defendant cannot then be qualified as a repeat violent offender in this case
        even though the convictions are qualifying. And . . . I’m stating this for the
        record, I do find that the proof has established beyond a reasonable doubt of
        the prior convictions and the period of incarceration, and this is solely upon
        the notice requirement of the statute that the Court is making its decision.

        Based on Defendant’s prior convictions for three counts of rape, one count of
assault and battery with a dangerous weapon, and one count of aggravated indecent
liberties with a child, the trial court determined that Defendant was a Range II, multiple
offender. The trial court found that no mitigating factors applied to Defendant’s case but
that several enhancement factors were applicable. Specifically, the trial court considered
that Defendant had a previous history of criminal convictions or criminal behavior in
addition to that necessary to establish the appropriate range; that the personal injuries
inflicted upon, or the amount of damage to property sustained by or taken from, the
victim was particularly great; that the offense involved a victim and was committed to
gratifying Defendant’s desire for pleasure or excitement; that Defendant, before trial or
sentencing, failed to comply with the conditions of a sentence involving release into the
community; and that, at the time the felony was committed, Defendant was released on
probation in one case and was on bail in another case.

      The trial court merged the kidnapping conviction in Count 12 into the aggravated
kidnapping conviction in Count 2 and sentenced Defendant, as follows:
        2
          In sentencing Defendant, the trial court properly merged the conviction for kidnapping in Count
1 into the conviction for aggravated kidnapping in Count 2. We note, however, the trial court failed to
impose a sentence in Count 1, and the record does not contain a separate judgment for that count. Our
supreme court has provided guidance as to the proper procedure for recording judgments of merged
                                                  -7-
Count Offense                        Class         Range                     Sentence
  2   Agg. kidnapping                B felony      Range II,        multiple 20 years at 100%
                                                   offender
   3      Attempted rape             C felony      Range II,        multiple 10 years at 35%
                                                   offender
   4      Robbery                    C felony      Range II,        multiple 10 years at 35%
                                                   offender
   5      Theft over $1,000          D felony      Range II,        multiple 8 years at 35%
                                                   offender

After finding that Defendant was an offender whose record of criminal activity was
extensive, the trial court ordered Defendant to serve his sentences consecutively, for a
total effective sentence of forty-eight years to serve in the Tennessee Department of
Correction.

       The trial court entered the judgments of conviction on October 26, 2017, and the
State filed a timely notice of appeal the same day. On November 6, 2017, Defendant
filed a timely motion for new trial. On February 27, 2018, this court stayed further
proceedings in the State’s appeal pending the trial court’s ruling on Defendant’s motion
for new trial.

        At a hearing on the motion for new trial, the State conceded that Defendant should
have been sentenced to a Class E felony in Count 5, rather than a Class D felony.
Accordingly, the trial court amended Defendant’s sentence for Count 5 to four years,
resulting in an effective sentence of forty-four years’ incarceration. The trial court denied
the motion for new trial in all other respects. Regarding the enhancement and mitigating
factors considered by the court during sentencing, the trial court explained:

               [I]t is this Court’s opinion that the factors in this case have been
        properly considered. The facts of the case . . . [are] that the victim in the
        case was bound and at some point was tied. At least possibly tied to a tree.
        But in any event, when she was left she was tied, and in fact, when she
        went to the neighbor’s house her hands were still tied in such a fashion that
        it does not appear to me that it was an attempt by [Defendant] to simply
        release her as was envisioned by the mitigating factors in the kidnapping

convictions. See State v. Berry, 503 S.W.3d 360, 365 (Tenn. 2015) (stating that “the best practice is for
the trial court to impose a sentence on each count and reflect the sentence on the respective uniform
judgment document”). Accordingly, on remand, the trial court should impose a sentence for Count 1 and
enter a separate judgment for that conviction. The trial court should also note in the “Special Conditions”
box that the conviction in Count 1 merges with the greater offense in Count 2.
                                                   -8-
       statute that [trial counsel] was arguing. That she was left bound, he may
       have driven off and left her, but she was nonetheless left bound and her
       freedom was limited by that. So that’s the reason I did not apply that as a
       mitigating factor, and I still believe that it was not a proper mitigating
       factor.

               I considered all of the other mitigating factors on the record and the
       Court did not find any of those to apply. In addition to that, I found the
       enhancement factors I believe properly. It is my opinion that the victim
       who testified that she was physically assaulted and digitally raped by this
       defendant and that she was kidnapped, and according to her testimony she
       was injured and that she had suffered psychological injury as a result of
       that. And I believe that that does constitute serious bodily injury necessary
       for the enhancement, and for that reason I found that to be an enhancement
       factor.

       The trial court filed an amended judgment of conviction in Count 5 on June 14,
2018, and Petitioner filed a timely notice of appeal on July 10, 2018. This court then
consolidated the two appeals under the instant docket number.

                                          Analysis

                                      A. Jurisdiction

       Initially, Defendant challenges this court’s jurisdiction to hear the State’s appeal.
As in any other appeal before this court, our first concern is whether this court is
authorized to hear the case. The State’s notice of appeal indicates that the State relied on
Tennessee Code Annotated section 40-35-120 to confer appellate jurisdiction, which
provides, in relevant part, that “[t]he finding that a defendant is or is not a repeat violent
offender is appealable by either party.” Tenn. Code Ann. § 40-35-120(h) (2017). “When
a statute affords a state or the United States the right to an appeal in a criminal
proceeding, the statute will be strictly construed to apply only to the circumstances
defined in the statute.” State v. Meeks, 262 S.W.3d 710, 718 (Tenn. 2008) (citing Carroll
v. United States, 354 U.S. 394, 400 (1957); State v. Adler, 92 S.W.3d 397, 400 (Tenn.
2002)). Defendant asserts that the State’s appeal is not proper under Tennessee Code
Annotated section 40-35-120(h) because the trial court never reached the question of
whether he was a repeat violent offender and only ruled that the State failed to give
proper notice. We disagree, however, with Defendant’s characterization of the trial
court’s ruling.



                                            -9-
        Here, the trial court determined that “the notice that was filed in this case for a
repeat violent offender does not meet the criteria of the statute and [] Defendant cannot
then be qualified as a repeat violent offender in this case even though the convictions are
qualifying.” The trial court then sentenced Defendant as a Range II, multiple offender on
all offenses. Thus, for the purposes of sentencing Defendant on aggravated kidnapping—
the conviction the State asserted was a “violent offense” under the repeat violent offender
statute—the trial court concluded that he was not a repeat violent offender and failed to
impose a sentence of life without parole as required by the statute. See Tenn. Code Ann.
§ 40-35-120(d)(1)(H); (g) (2017). Under these circumstances, we conclude that the State
has a right to an appeal under Tennessee Code Annotated section 40-35-120(h), and this
court has jurisdiction to consider the claim raised by the State.

                            B. Sufficiency of the State’s Notice

        Pursuant to Tennessee Code Annotated section 40-35-120(a)(5)-(6), “[a] ‘repeat
violent offender’ is a defendant who . . . [i]s convicted in this state on or after July 1,
1995, of any offense classified in subdivision (d)(1) as a violent offense; and . . . [h]as at
least one (1) prior conviction for an offense classified in subdivision (d)(1) or (d)(2) as a
violent offense[.]” Tenn. Code Ann. § 40-35-120(a)(5)-(6) (2017). Under subdivision
(d)(1), aggravated kidnapping and rape are classified as violent offenses. Tenn. Code
Ann. § 40-35-120(d)(1)(H)-(I). To qualify as a “prior conviction” under subdivision
(a)(5)-(6), there must have been “at least one (1) separate period of incarceration for the
commission of a predicate offense” before committing the instant offense. Tenn. Code
Ann. § 40-35-120(e)(1)(C) (2017). “‘Prior convictions’ include convictions under the
laws of any other state, government or country that, if committed in this state, would have
constituted a predicate offense . . . if there are separate periods of incarceration in the
other state . . . .” Tenn. Code Ann. § 40-35-120(e)(4) (2017). If a defendant has a
sufficient number of prior convictions to qualify for sentencing as a repeat violent
offender, a trial judge must reject any plea bargain that does not recommend sentencing
the defendant as a repeat violent offender. Tenn. Code Ann. § 40-35-120(f) (2017).
Before imposing the sentence of life without possibility of parole, the trial court must
find, beyond a reasonable doubt, that the defendant meets the requirements to be declared
a repeat violent offender. Tenn. Code Ann. § 40-35-120(g) (2017).

       The State is required to give notice of its intent to seek enhanced sentencing as a
repeat violent offender. Tennessee Code Annotated section 40-35-120 provides:

              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
                                            - 10 -
       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.

Tenn. Code Ann. § 40-35-120(i)(2) (2017). The notice “provides defendants with fair
notice of their exposure to enhanced sentencing, 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. Patterson, 538
S.W.3d 431, 438 (Tenn. 2017) (quoting State v. Adams, 788 S.W.2d 557, 559 (Tenn.
1990)) (internal footnote omitted). “A notice that fails to provide the defendant with any
of the statutorily required relevant information is not fair notice and is insufficient.” Id.
at 442 (citing Adams, 788 S.W.2d at 559). However, “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.
(quoting Adams, 788 S.W.2d at 559); 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). We
review the sufficiency of the State’s notice to seek enhanced punishment de novo with no
presumption of correctness. State v. Williams, 558 S.W.3d 633, 639 (Tenn. 2018).

       In this case, the State’s listed Defendant’s three prior convictions from Oklahoma
for Rape in the First Degree, provided the date of conviction and convicting court for
each offense, and under the heading “Sentence,” listed a sentence length of twenty-five
years as to each conviction. As previously noted, to qualify as a “prior conviction” under
Tennessee Code Annotated section (a)(5)-(6), there must have been “at least one (1)
separate period of incarceration for the commission of a predicate offense” before
Defendant committed the instant offense. Tenn. Code Ann. § 40-35-120(e)(1)(C). The
State’s notice, however, did not list the periods of incarceration served by Defendant for
his prior convictions. Relying on Cooper, the trial court determined that the State had not
provided proper notice to Defendant, finding that the State’s failure to include “the actual
periods of incarceration” on the notice “disqualifie[d] this as a proper notice.”

        The trial court conducted Defendant’s sentencing hearing on October 11, 2017,
over a month before the Tennessee Supreme Court filed its opinion in Patterson. Thus,
the trial court did not have the benefit of the supreme court’s guidance in Patterson,
wherein it clarified that Cooper stood “only for the proposition that, if the State fails to
                                           - 11 -
give any notice at all prior to trial, it may not seek enhanced sentencing as a repeat
violent offender.” Patterson, 538 S.W.3d at 439. The supreme court explained that

       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.
       [State v.] Livingston, 197 S.W.3d [710,] . . . 713 [(Tenn. 2006)].

Patterson, 538 S.W.3d at 441.

       Here, the State filed a pretrial notice of its intent to seek enhanced sentencing as a
repeat violent offender on May 23, 2017, in case number 17458. The document clearly
and unambiguously informed Defendant of the State’s intent to have him sentenced as a
repeat violent offender. Although the document failed to list “at least one (1) separate
period of incarceration for the commission of a predicate offense[,]” see Tenn. Code Ann.
§ 40-35-120(e)(1)(C), we conclude that it constituted fair notice and unambiguously
advised Defendant of the State’s intent to sentence him as a repeat violent offender and
was sufficient to trigger Defendant’s duty to inquire into the omitted information. See
Patterson, 538 S.W.3d at 443 (citing Adams, 788 S.W.2d at 559).

        The analysis in this case is complicated, however, by the issuance of the
superseding indictment on July 6, 2017, in case number 18305, which charged the
additional offense of aggravated kidnapping. “If proper notice is timely filed, but a
superseding indictment charges additional offenses, then the State must file a new notice
for the additional offenses.” Williams, 558 S.W.3d at 640 (citing Carter, 121 S.W.3d at
584-86). Here, the State failed to file a new notice following the issuance of the
superseding indictment in case number 18305; however, at a pretrial motion hearing on
August 30, 2017, the State asked that the trial court “incorporate the file from the initial
[i]ndictment . . . into the superseding indictment which is case number 18305[,]” and the
trial court agreed. We conclude that, by incorporating the original case file into the case
file for the superseding indictment, the State substantially complied with its obligation to
file a new notice for the additional offense charged in the superseding indictment.

       We note that the State incorporated the original case file into the file for the
superseding indictment on August 30, 2017, only six days before Defendant’s trial on
September 5, 2017. As previously stated, a defendant should have forty-five days
                                            - 12 -
between receipt of the State’s notice of intent to seek enhanced sentencing as a repeat
violent offender and trial. See Tenn. Code Ann. § 40-35-120(i)(2). However, the remedy
for an untimely notice is the option of a continuance for the defense, not the preclusion of
the State from seeking enhanced sentencing. State v. Thompson, 36 S.W.3d 102, 115-16
(Tenn. Crim App. 2000) (citing Tenn. Code Ann. § 40-35-120(i)(2)). It does not appear
from the record that Defendant requested a trial continuance. Moreover, if the notice is
filed late but still filed 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. Because Defendant has failed to
show that he was prejudiced by the late-filed notice, we conclude that the State’s notice
was effective for purposes of enhancing Defendant’s sentence under the repeat violent
offender statute.

                                 C. Repeat Violent Offender Status

       Because the issue of whether a defendant is or is not a repeat violent offender is
appealable by either party, see Tenn. Code Ann. § 40-35-120(h), this court clearly has the
authority to determine Defendant’s status as a repeat violent offender. State v. Thomas
D. Stanton, No. M2003-03049-CCA-R3-CD, 2005 WL 639139, at *15 (Tenn. Crim.
App. Mar. 17, 2005), perm. app. denied (Tenn. Aug. 22, 2005).

       At the sentencing hearing, the State introduced certified copies of the records of
Defendant’s prior convictions from Oklahoma without objection from Defendant. The
records indicate that on May 28, 1997, Defendant pled guilty to two counts of Rape in the
First Degree in case number CR-96-508 and one count of Rape in the First Degree in case
number CR-96-509. He received concurrent sentences of twenty-five years to serve in
the Oklahoma Department of Corrections. Count 1 of the indictment in case number CR-
96-508 charges that, on December 22, 1996, Defendant

       did unlawfully, willfully and feloniously with the use of force, threats,
       violence, or by means of threats of force or violence accompanied by
       apparent power of execution to [the victim], and did then and there
       vaginally rape, ravish, carnally know and have sexual penetration and
       intercourse with [the victim] against her will and consent and said
       defendant is not married to [the victim][.]3




       3
           See 21 Okl. St. Ann. § 1111(A)(3), 1114(A)(5).
                                                  - 13 -
Count 2 reads that Defendant

        did unlawfully, willfully and feloniously with the use of force, threats,
        violence, or by means of threats of force or violence accompanied by
        apparent power of execution to [the victim], and did then and there anally
        rape, ravish, carnally know and have sexual penetration and intercourse
        with [the victim] against her will and consent and said defendant is not
        married to [the victim][.]

      The indictment in case number CR-96-509 charges that on December 23, 1996,
Defendant

        did unlawfully, willfully and feloniously with the use of force, threats,
        violence, or by means of threats of force or violence accompanied by
        apparent power of execution to [a second victim], and did then and there
        rape, ravish, carnally know and have sexual penetration and intercourse
        with [the second victim] against her will and consent and said defendant is
        not married to [the second victim][.]

      The records further indicate that Defendant was released to supervised probation
on February 2, 2011, by the Oklahoma Department of Corrections.

       Based on this evidence, we conclude that the evidence established Defendant’s
repeat violent offender status and was more than sufficient to support a finding beyond a
reasonable doubt that Defendant is a repeat violent offender as defined in the relevant
statutory provision. Defendant was convicted of aggravated kidnapping in the instant
case and has at least one prior conviction for an offense (Rape in the First Degree) that, if
committed in this state,4 would constitute the predicate offense of rape under the repeat

        4
          In Tennessee, rape is defined as the “unlawful sexual penetration of a victim by the defendant or
of the defendant by a victim” where:

                (1) Force or coercion is used to accomplish the act;

                 (2) The sexual penetration is accomplished without the consent of the victim and
        the defendant knows or has reason to know at the time of the penetration that the victim
        did not consent;

                (3) The defendant knows or has reason to know that the victim is mentally
        defective, mentally incapacitated or physically helpless; or

                (4) The sexual penetration is accomplished by fraud.

                                                  - 14 -
violent offender statute. See Tenn. Code Ann. § 40-35-120(a)(5)-(6); (d)(1)(H)-(I);
(e)(4). Moreover, there was at least one separate period of incarceration for the
commission of the predicate offense—from May 28, 1997, to February 2, 2011—before
Defendant committed the instant offense. Tenn. Code Ann. § 40-35-120(e)(1)(C). As
such, the trial court was required to impose a sentence of life without possibility of parole
as to Defendant’s aggravated kidnapping conviction, and we agree with the State that the
trial court erred in failing to do so. See Tenn. Code Ann. § 40-35-120(g). Therefore, we
modify Defendant’s sentence for his aggravated kidnapping conviction to life without
possibility of parole.

                                     D. Mitigating Factor

        Defendant contends that the trial court should have considered, as a mitigating
factor under the aggravated kidnapping statute, that he “voluntarily release[d] the victim
alive[.]” See Tenn. Code Ann. § 39-13-304(b)(2) (2017). The State responds that
because Defendant is a repeat violent offender and must be sentenced to life without
possibility of parole, the issue of a mitigating factor is moot and that, in any event, the
trial court properly declined to mitigate Defendant’s sentence based on the victim’s
survival. We agree that Defendant’s claim is rendered moot by our decision to modify
the sentence for aggravated kidnapping to life without possibility of parole; however, we
will address this issue in case of further appellate review.

        In concluding that the mitigating factor was not applicable in Defendant’s case,
the trial court commented:

               The facts of the case . . . [are] that the victim in the case was bound
       and at some point was tied. At least possibly tied to a tree. But in any
       event, when she was left she was tied, and in fact, when she went to the
       neighbor’s house her hands were still tied in such a fashion that it does not
       appear to me that it was an attempt by [Defendant] to simply release her as
       was envisioned by the mitigating factors in the kidnapping statute that [trial
       counsel] was arguing. That she was left bound, he may have driven off and
       left her, but she was nonetheless left bound and her freedom was limited by
       that. So that’s the reason I did not apply that as a mitigating factor, and I
       still believe that it was not a proper mitigating factor.

       Based on the record before us, we conclude that the trial court properly declined to
apply the mitigating factor found in Tennessee Code Annotated section 39-13-304(b)(2).
The record contains no proof that Defendant “released” the victim. The victim was not

       Tenn. Code Ann. § 39-13-503(a)(1)-(4).
                                                - 15 -
“released” but was left duct-taped to a tree. Defendant is not entitled to relief on this
issue.

                                      Conclusion

       For the aforementioned reasons, we modify Defendant’s sentence for his
conviction for aggravated kidnapping to life without possibility of parole. We remand for
entry of an amended judgment in Count 2 sentencing Defendant, as a repeat violent
offender, to life without possibility of parole. Upon remand, the trial court should also
impose a sentence on the merged conviction of kidnapping in Count 1. In all other
respects, we affirm the judgments of the trial court.



                                            ____________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




                                         - 16 -
