          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                        APRIL SESSION, 1996         FILED
                                                    August 9, 1996

                                               Cecil W. Crowson
STATE OF TENNESSEE,        )
                                             Appellate Court Clerk
                           )    No. 01C01-9508-CR-00259
      Appellee             )
                           )    SUMNER COUNTY
vs.                        )
                           )    Hon. Jane W. Wheatcraft, Judge
PHILLIP CRAIG MANGRUM,     )
                           )    (Aggravated Burglary)
      Appellant            )



For the Appellant:              For the Appellee:

James M. Hunter                 Charles W. Burson
Hunter & Hunter                 Attorney General and Reporter
182 West Franklin Street
Gallatin, TN 37066              Sarah M. Branch
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                Lawrence Ray Whitley
                                District Attorney General

                                Mr. Dee Gay
                                Asst. District Attorney General
                                113 East Main Street
                                Gallatin, TN 37066




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                     OPINION



       The appellant, Phillip Mangrum, pled guilty in the Criminal Court of

Sumner County to aggravated burglary, a class C felony. Tenn. Code Ann. § 39-

14-403 (1991). The trial court sentenced the appellant as a multiple offender

within range II to eight years incarceration in the Department of Correction. The

appellant appeals from this sentence, contending, in essence, that (1) the

appellant’s status as a multiple offender is not supported by the record; (2) the

State’s notice of enhanced sentencing was inadequate under the Sentencing Act

and Tenn. R. Crim. P. 12.3; and (2) his sentence is excessive.



                            FACTUAL BACKGROUND

       On December 7, 1994, the Sumner County Grand Jury returned an

indictment charging the appellant with one count of theft of property worth more

than $1000, one count of theft of property worth less than $500, and one count

of aggravated burglary. On January 12, 1995, the State filed its notice of intent

to seek enhanced punishment of the appellant as a range II, multiple offender.

The State relied upon two prior convictions, including a 1973 conviction for

possession of stolen mail in Chicago, Illinois and a 1991 conviction for sale of a

schedule III controlled substance in the Sumner County Criminal Court.1 On


       1
        Tenn. Code Ann. § 40-35-202(a) (1990) provides:
             If the district attorney general believes that a
             defendant should be sentenced as a multiple,
             persistent or career offender, he shall file a statement
             thereof with the court and defense counsel not less
             than ten (10) days before trial or acceptance of a
             guilty plea ... Such statement ... must set forth the
             nature of the prior felony convictions, the dates of the
             convictions and the identity of the courts of the
             convictions.
       Tenn. R. Crim. P. 12.3 provides:
             Written statements of the district attorney giving
             notice that the defendant should be sentenced to an
             enhanced punishment ... shall be filed not less than
             ten (10) days prior to trial. If the notice is filed later
             than this time, the trial judge shall grant the defendant
             upon his motion a reasonable continuance of the trial.

                                          2
February 17, 1995, the appellant pled guilty to aggravated burglary in exchange

for the dismissal of the remaining two counts of the indictment. In accordance

with the plea agreement, the trial court was to determine the length and manner

of service of the sentence.



       On April 3, 1995, the trial court conducted a sentencing hearing. The

State relied upon the pre-sentence report submitted by Carol Martin, a

community corrections case officer. Martin testified at the hearing that the Illinois

conviction for stolen mail, set forth in the State’s notice of enhancement, was

probably erroneously included in the appellant's criminal history. Nevertheless,

the pre-sentence report reflects thirty-one prior convictions, comprising fourteen

felony convictions and seventeen misdemeanor convictions. At the time of the

sentencing hearing in the instant case, the appellant was serving two concurrent

sentences of one year and three years with Corrections Corporation of America

in Davidson County pursuant to convictions for theft.



       The appellant testified on his own behalf. With respect to the convictions

listed in the State’s notice of enhancement, he denied being convicted of

possession of stolen mail in Chicago, Illinois, claiming that he has never been to

Chicago. The appellant did not deny the conviction for the sale of schedule III

drugs. He remarked, “In the past I had a problem. I got caught with some

people with dope several times, and I took the blame for it several times.” The

appellant testified that his memory of past events “is kind of foggy” due to his

abuse of crack cocaine. Moreover, the appellant admitted numerous convictions

for first degree burglary, second degree burglary, and grand larceny, explaining

that he was on heroin at the time.



       The appellant is 35 years old. He is married. His wife is named as a co-




                                         3
defendant with respect to the offenses committed in the instant case. The

appellant has three children who currently reside with the appellant’s mother.

The appellant’s sister, Linda Evans, testified, “As a father [the appellant] has

been almost not there.” However, Ms. Evans also asserted a belief that her

brother has changed and is prepared to assume responsibility for his children

and his life. The appellant has an eleventh grade education, and his

employment history is sporadic.



          The appellant testified that he has been abusing drugs since he was

sixteen. He attributes his criminal history to his drug addiction. However, he

testified, “Eight months ago I got saved. Ever since I got saved, I was trying to

help people around the jails ... .” The appellant has been attending a substance

abuse program operated by "Lifeline." Additionally, he is attending classes in

order to obtain his GED.



          The appellant also submitted a letter from his aunt, Billie Jean Owens, in

which Ms. Owens guaranteed the appellant a job renovating her home should he

be released from prison. Moreover, the appellant introduced letters from the

Sunday School Director and the Minister of the church attended by the Mangrum

family.



          Prior to the conclusion of the sentencing hearing, the State moved to

amend its notice of enhanced punishment by including the convictions set forth

in the pre-sentence report. Defense counsel interposed no objection, and the

trial court granted the State’s motion.



          In sentencing the appellant to eight years incarceration in the Department

of Correction, the trial court found applicable the following enhancement factors:

          (1) The defendant has a previous history of criminal convictions or
          criminal behavior in addition to those necessary to establish the

                                           4
       appropriate range, Tenn. Code Ann. § 40-35-114(1) (1994 Supp.);
       and

       (2) The defendant was a leader in the commission of an offense
       involving two (2) or more criminal actors, Tenn. Code Ann. § 40-35-
       114(2).


The record reflects that the trial court was particularly impressed by the

appellant’s criminal history.



                                     ANALYSIS

       Initially, we conclude that, contrary to the appellant’s assertion in his brief,

the evidence adduced at the sentencing hearing overwhelmingly establishes the

appellant’s eligibility for sentencing within range II as a multiple offender. Tenn.

Code Ann. § 40-35-106 (1990). In the context of establishing the appropriate

sentencing range, this court has held that, absent a showing that the report is

based upon unreliable sources or is otherwise inaccurate, information about

convictions contained in a pre-sentence report is reliable. State v. Hines, No.

01C01-9406-CC-00189 (Tenn. Crim. App. at Nashville), perm. to appeal denied,

(Tenn. 1995). The record reflects that the officer who prepared the pre-sentence

report in this case did not rely solely upon an N.C.I.C. report in compiling the

appellant’s criminal history. State v. Buck, 670 S.W.2d 600, 607 (Tenn. 1984)

(the information contained in N.C.I.C. reports is of a dubious degree of

accuracy). Moreover, the appellant was provided more than a month to

investigate the convictions listed in the State’s notice of enhancement and, at the

sentencing hearing, presented proof that the appellant was not the subject of the

Illinois conviction. In contrast, although the appellant was entitled to rebut

information contained in the pre-sentence report concerning other prior

convictions, he failed to challenge the report or file any statement in response to

it. See Tenn. Code Ann. § 40-35-209(a) and (d)(1) (1990). In fact, the

appellant’s own testimony unequivocally supports his status as a multiple

offender.


                                           5
       The appellant also argues that the State’s notice of enhanced sentencing

did not comply with the applicable provisions of the Sentencing Act and Tenn. R.

Crim. P. 12.3.2 With respect to the State’s amendment of the notice of enhanced

sentencing to include the felonies listed in the pre-sentence report, we note that

the appellant failed to object at the sentencing hearing. Yet, in State v. Debro,

787 S.W.2d 932, 933-934 (Tenn. Crim. App. 1989), this court hesitated to apply

the waiver doctrine set forth in State v. Stephenson, 752 S.W.2d 80, 81 (Tenn.

1988), to cases involving defects in the content of notice rather than delay in

filing. The waiver doctrine set forth in Stephenson addressed defense counsel’s

obligation under Tenn. R. Crim. P. 12.3 to seek a continuance of trial in the event

of a late filing. See also State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990)(a

continuance would not ordinarily suffice to correct misinformation). Arguably, the

State’s amendment constituted a late filing. Nevertheless, in the instant case,

the appellant had already pled guilty when the State sought to amend notice to

include additional convictions. Clearly, the appellant could not request a

continuance of trial. Accordingly, the inquiry is one of prejudice rather than

waiver. Id.3



       We conclude that the appellant has failed to show any prejudice arising

from the defective notice and the State’s amendment thereto. Id. The State’s

initial notice substantially complied with Tenn. Code Ann. § 40-35-202(a) and

Tenn. R. Crim. P. 12.3. The State’s mistaken reliance upon the Illinois



       2
           See supra note 1.
       3
       Waiver may also be found pursuant to Tenn. R. App. P. 36(a). That rule
provides that “[n]othing in this rule shall be construed as requiring relief be
granted to a party ... who failed to take whatever action was reasonably available
to prevent or nullify the harmful effect of an error.” The appellant could have
submitted a motion to continue the sentencing hearing in order that the trial court
might determine whether the State’s amendment of the notice had so prejudiced
the appellant as to require an opportunity for the withdrawal of the guilty plea.
Obviously, defense counsel did not make such a motion in this case because
such a motion would have been entirely futile. The lack of prejudice to the
appellant in this case was blatantly obvious.

                                         6
conviction constituted an error appearing upon the face of the notice, obliging the

appellant to inquire further. Id. Again, the State submitted the notice of

enhanced sentencing more than one month prior to the appellant’s guilty plea,

providing sufficient time for the appellant to conduct such inquiries. Clearly, the

appellant was aware of the mistake prior to his guilty plea, and clearly the

appellant was aware of his own extensive criminal history prior to the entry of his

plea. Finally, we have previously observed that the record establishes the

appellant’s criminal history beyond a reasonable doubt. This issue is without

merit.



         The appellant also argues that his sentence is excessive.4 Review, by this

court, of the length of a sentence is de novo with a presumption that the

determination made by the trial court is correct. Tenn. Code Ann. § 40-35-

401(d) (1990). This presumption only applies, however, if the record

demonstrates that the trial court properly considered sentencing principles and

all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). The legislature has listed factors that the trial judge shall consider

in determining the specific sentence:

         1. the evidence, if any, received at the trial and the
         sentencing hearing;
         2. the pre-sentence report;
         3. the principles of sentencing and arguments as to
         sentencing alternatives;
         4. the nature and characteristics of the criminal conduct
         involved;
         5. evidence and information offered by the parties on the
         enhancement and mitigating factors in §§ 40-35-113 and 40-
         35-114; and
         6. any statement the defendant wishes to make in his own
         behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b)(1990). General principles of sentencing

include the following: potential or lack of potential for rehabilitation; the

imposition of a sentence no greater than that warranted by the offense; the


         4
       The appellant does not challenge the trial court’s denial of an alternative
sentence.

                                           7
imposition of the least severe measure necessary to achieve the purposes for

which the sentence is imposed; and the availability of alternatives to

incarceration. Tenn. Code Ann. §§ 40-35-103(2)-(6)(1990).



       With respect to the length of a sentence, Tenn. Code Ann. § 40-35-

210(1990) provides that the minimum sentence within the appropriate range is

the presumptive sentence. If there are enhancing and mitigating factors, the

court must start at the minimum sentence in the range and enhance the

sentence as appropriate for the enhancement factors and then reduce the

sentence within the range as appropriate for the mitigating factors. Id. If there

are no mitigating factors, the court may set the sentence above the minimum in

that range, but still within the range. Id. See also State v. Dies, 829 S.W.2d

706, 710 (Tenn. Crim. App. 1991). "[T]here is no particular value assigned by

the 1989 Sentencing Act to the various factors and the 'weight afforded

mitigating or enhancement factors derives from balancing relative degrees of

culpability within the totality of the circumstances of the case involved.'" State v.

Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1993)(citation omitted). The weight assigned to any existing factor is

generally left to the trial judge's discretion. Id.



       The appellant was convicted of a class C felony and sentenced as a

multiple offender within range II. Thus, the applicable sentencing range was six

to ten years. See Tenn. Code Ann. § 40-35-112(b)(3) (1990). The appellant

received a mid-range sentence of eight years. As noted earlier, the trial court

applied enhancement factors (1) and (2). We agree that the record does not

support the application of factor (2). Therefore, this court need not defer to the

trial court’s determination. Nevertheless, the record clearly supports the trial

court's reliance upon factor (1). Upon de novo review of the record, we conclude

that the appellant's criminal history is not only extensive, it is reprehensible. In


                                            8
fact, the appellant’s criminal history outweighs any mitigating factors, including

any potential for rehabilitation, otherwise indicated by the record and fully

supports the sentence imposed. This issue is without merit.



       For the foregoing reasons, the judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:


_______________________________________
JOE B. JONES, Presiding Judge



_______________________________________
JOHN H. PEAY, Judge




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