Enhanced Sentencing Notice
Case: State v. Kevin Patterson
Issue: What information must be specified in the State’s notice of intent to seek enhanced sentencing?
Facts: Defendant was found guilty of attempted second degree murder. The State filed a document styled “Notice of Prior Convictions” stating that the State intended to seek to have Defendant declared as a Repeat Violent Offender. The State’s notice listed the prior convictions but did not specify which statutory provisions for repeat violent offender sentencing that the State sought, or which of his prior convictions were qualifying convictions. The Defendant was sentenced as a repeat violent offender to life without parole.
Appellate Decision: Although the issue was not raised by the parties, the intermediate court found plain error and vacated the finding that Defendant was a repeat violent offender because the State failed to comply with the requirements of Tenn. Code Ann. § 40-35-120(i)(2) to “set forth the nature of the defendant’s prior convictions as qualifying prior conviction[s] and the dates of the prior period of incarceration.” The court noted that the result was required by the Supreme Court’s decision under similar circumstances in State v. Cooper, 321 S.W.3d 501, 506 (Tenn. 2010).
Judge Easter dissented, finding Cooper distinguishable because the State’s listing of prior convictions sufficiently put the Defendant on notice. The Defendant could use “process of elimination” to “determine with reasonable clarity which offenses” were “qualifying offenses,” and had sufficient opportunity to raise the issue before trial.
Judge Holloway concurred, writing that he was “sympathetic to the common sense approach that Judge Easter uses in the separate opinion” but that the issue was nonetheless controlled by Cooper.
Review Granted: April 12, 2017.
Prediction: Ben thinks the Supreme Court will reverse and hold that the Defendant waived the issue and is not entitled to relief on plain error review. Although the State failed to comply with the statute’s unambiguous, mandatory requirements, he was given sufficient notice of the State’s intent to seek enhanced sentencing to inquire further if desired, such that the failure does not create plain error.
David believes error comes in many flavors: plain, harmless, and reversible. He agrees with Ben that the bitter plain error rule will trump the defective notice but the Court should not use this as an opportunity to dispense with the strict notice requirement. At bottom, if there is improper notice and a timely objection, the defendant’s sentence should not be enhanced. David believes that courts should not rely on the understanding of the defendant as to the nature of prior convictions, which people do not always understand or remember years later. Something as serious as life without parole requires specific notice which should be rigorously enforced. Cooper will be functionally overruled.