State of Tennessee v. Jayson Keith Johnson

04/08/2025

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 4, 2025

STATE OF TENNESSEE v. JAYSON KEITH JOHNSON

Appeal from the Circuit Court for Benton County

No. 22-CR-67 Bruce Griffey, Judge

___________________________________

No. W2024-00692-CCA-R3-CD

___________________________________

A Benton County jury convicted the Defendant, Jayson Keith Johnson, of reckless

homicide and introduction of contraband into a penal institution. At the sentencing hearing,

the trial court found that the Defendant was a Range III, persistent offender. It also found

that consecutive sentences were appropriate and sentenced the Defendant to an effective

term of twenty years. On appeal, the Defendant argues that the trial court improperly

imposed consecutive sentences. He also asserts that the State did not provide adequate

pretrial notice that he would be subject to Range III sentencing. Upon our review, we hold

that the trial court acted within its discretion in imposing consecutive sentences. However,

we respectfully remand the case for the trial court to resentence the Defendant as a Range

II, multiple offender.

Tenn. R. App. P. 3 Appeal as of Right;

Judgments of the Circuit Court Affirmed in Part; Case Remanded

TOM GREENHOLTZ, J., delivered the opinion of the court, in which J. ROSS DYER and

JILL BARTEE AYERS, JJ., joined.

Marcus D. Noles, Camden, Tennessee, for the appellant, Jayson Keith Johnson.

Jonathan Skrmetti, Attorney General and Reporter; Ryan Dugan, Assistant Attorney

General; J. Neil Thompson, District Attorney General; and Michael Thorne and Deven

Wilson Whitfield, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

FACTUAL BACKGROUND

On October 3, 2022, a Benton County grand jury charged the Defendant with three

counts of second degree murder as Class A felony offenses and one count of introducing

methamphetamine into a penal institution as a Class D felony offense. The charges

stemmed from the deaths of three individuals who allegedly overdosed on drugs that the

Defendant brought into a jail where they were all incarcerated.

On February 7, 2023, the State filed a pretrial Notice of Intent to Seek Enhanced

Punishment identifying the Defendant as a Range II, multiple offender. The State’s notice

identified two prior felony convictions: a Class B felony conviction for initiating the

process to manufacture methamphetamine and a Class C felony conviction for the

possession of a Schedule II drug with intent to sell or deliver.

Following a trial conducted in April 2023, a jury found the Defendant guilty of one

count of reckless homicide, which is a Class D felony and a lesser-included offense of

second degree murder. It also found him guilty as charged for introducing

methamphetamine into a penal institution. The jury acquitted the Defendant on the two

remaining counts of second degree murder.

The day after the jury’s verdict, the State filed an amended notice of enhanced

punishment, asserting that the Defendant qualified as a Range III, persistent offender. The

amended notice, which was filed on April 6, 2023, identified three additional prior felony

convictions, including two convictions for reckless endangerment with a deadly weapon

and one for promoting the manufacture of methamphetamine. On June 20, 2023, the

Defendant objected to the amended notice, arguing that the State’s late filing failed to

comply with the pretrial notice provisions of Tennessee Code Annotated section 40-35-

202(a).

The trial court conducted a sentencing hearing on September 15, 2023. At the

hearing, neither party presented any witnesses; however, the State offered the Defendant’s

presentence report, which included the validated risk and needs assessment. The report

identified that the Defendant had prior convictions for domestic violence, violating

protective orders, vandalism, unlawful possession of a weapon by a convicted felon,

possession of methamphetamine for resale, and other drug-related offenses. Relevant to

this appeal, the parties disagreed on the appropriate sentencing range and whether the

sentences should be served consecutively.

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After hearing arguments, the trial court reviewed the Defendant’s prior criminal

history from the presentence report. Based upon the additional convictions identified in

the State’s amended notice of enhancement, and citing the trial court’s duty to determine

the appropriate range of punishment pursuant to Tennessee Code Annotated section 40-35-

210, the court determined that the Defendant qualified as a Range III, persistent offender.

In considering whether the sentences should run concurrently or consecutively, the

trial court found that the Defendant’s criminal record was extensive and that he committed

the offenses while on probation. See Tenn. Code Ann. § 40-35-115(b)(2), (6) (2019). The

court imposed a sentence of ten years for each conviction and, aligning the sentences

consecutively, ordered that the Defendant serve an effective sentence of twenty years in the

Tennessee Department of Correction.

The trial court clerk filed the judgments of conviction on October 25, 2023, after

which the Defendant filed a timely motion for a new trial. The trial court denied the motion

on April 11, 2024, and the Defendant filed a timely notice of appeal twenty-nine days later.

ANALYSIS

In this appeal, the Defendant raises two issues, both related to his sentences. He

first argues that the trial court improperly imposed consecutive sentences. He also asserts

that the trial court improperly sentenced him as a Range III, persistent offender because the

State’s amended notice of enhancement was untimely pursuant to Tennessee Code

Annotated section 40-35-202(a). We address each of these issues in turn.

A. C ONSECUTIVE S ENTENCES

The Defendant first challenges the trial court’s decision to impose consecutive

sentences. More specifically, he argues that the trial court did not rely upon “certified or

original convictions” and that the current convictions were part of “one set of continuous

actions.” In response, the State observes that the presentence report provided the trial court

with a sufficient basis to find that the Defendant’s record of criminal activity was extensive

and that he was on probation at the time of the instant offenses.1 It also asserts that the

Defendant has waived any argument that consecutive sentences could not be imposed due

to inadequate briefing. We agree with the State.

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Although the Defendant was incarcerated at the time of the offense, he was being held on

allegations that he violated the terms and conditions of a previously probated sentence.

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1. Standard of Appellate Review

When a defendant challenges the trial court’s decision to impose consecutive

sentences, we review that decision for an abuse of discretion accompanied by a

presumption of reasonableness. See State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013).

Thus, we defer to “the trial court’s exercise of its discretionary authority to impose

consecutive sentences if it has provided reasons on the record establishing at least one of

the [ten] grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]” Id. at 861.

As our supreme court has recognized, “[s]o long as a trial court properly articulates reasons

for ordering consecutive sentences, thereby providing a basis for meaningful appellate

review, the sentences will be presumed reasonable and, absent an abuse of discretion,

upheld on appeal.” Id. at 862.

2. The Defendant’s Challenge to Consecutive Sentences

The process of imposing discretionary consecutive sentences pursuant to Tennessee

Code Annotated section 40-35-115(b) involves two steps. First, the trial court must find

by a preponderance of the evidence that “the defendant qualifies for consecutive sentencing

under one of the classifications” set forth in the statute. State v. Perry, 656 S.W.3d 116,

127 (Tenn. 2022) (footnote omitted). Second, the trial court must “then choose whether,

and to what degree, to impose consecutive sentencing based on the facts and circumstances

of the case, bearing in mind the purposes and principles of sentencing.” Id. Because the

criteria for consecutive sentencing are stated in the alternative, “only one [ground] need

exist to support the appropriateness of consecutive sentencing.” State v. Mickens, 123

S.W.3d 355, 394 (Tenn. Crim. App. 2003).

In this case, the trial court imposed consecutive sentences for two reasons. First, it

found that the Defendant had an extensive record of criminal activity. Tenn. Code

Ann. § 40-35-115(b)(2). It also found that the Defendant was being sentenced for offenses

committed while on probation. Id. § 40-35-115(b)(6). However, despite the trial court’s

finding that two grounds supported consecutive sentencing, the Defendant challenges only

the trial court’s determination that he has an extensive record of criminal activity. He raises

no issue with—and has therefore waived any challenge to—the trial court’s additional

finding that consecutive sentences were proper because he was on probation at the time of

the offenses. See State v. Bristol, 654 S.W.3d 917, 923 (Tenn. 2022) (“[A]n appellate

court’s authority ‘generally will extend only to those issues presented for review.’”

(quoting Tenn. R. App. P. 13(b)).

Accordingly, because at least one unchallenged basis exists for the trial court’s

decision to impose consecutive sentences, we respectfully affirm the trial court’s judgment

in that regard. See State v. Whited, No. M2005-00167-CCA-R3-CD, 2006 WL 548228, at

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*17 (Tenn. Crim. App. Mar. 7, 2006) (affirming an order of consecutive sentences, when

despite a challenge to the dangerous offender category, the defendants did not challenge

the trial court’s finding that the defendants were on probation at the time of the offenses),

perm. app. denied (Tenn. Aug. 28, 2006); State v. Muhammed, No. E2003-01629-CCA-

R3-CD, 2004 WL 1073889, at *16 (Tenn. Crim. App. May 10, 2004), perm. app. denied

(Tenn. May 12, 2007) (“The trial court found that the defendant was on probation for a

prior assault conviction at the time he committed the instant offenses, and he does not

contest this fact. . . . Thus, even if the defendant’s arguments were correct as to the finding

he is a dangerous offender, the fact remains that he was on probation when he committed

the present offenses.”). The Defendant is not entitled to relief.

3. Consecutive Sentences Arising From “Single Episode” Offenses

The Defendant next asserts that consecutive sentencing was improper because the

offenses were part of one continuous criminal episode. The entire argument on this point

consists of a single sentence: “The events which made up the Defendant’s convictions were

all one set of continuous actions.” The State responds that the Defendant has waived this

argument due to “inadequate briefing.” We agree.

“As an intermediate court of appeals, our function is principally to review and

correct errors.” State v. Holmgren, No. M2023-00795-CCA-R3-CD, 2024 WL 2891416,

at *1 (Tenn. Crim. App. June 10, 2024), no perm. app. filed. In that role, properly

conceived, we do not “sit as self-directed boards of legal inquiry and research, sallying

forth each day looking for wrongs to right.” Bristol, 654 S.W.3d at 924 (citations and

alteration omitted). Instead, we rely upon the parties to identify the errors they believe

were committed in the trial court and to show why they believe the law entitles them to

relief on appeal. See State v. Hamilton, No. W2023-01127-CCA-R3-CD, 2024 WL

4130757, at *4 (Tenn. Crim. App. Sept. 10, 2024) (citing Berry v. State, 366 S.W.3d 160,

169 (Tenn. Crim. App. 2011)), perm. app. denied (Tenn. Feb. 20, 2025).

To resolve the Defendant’s issue, we would have to construct the nature and extent

of his arguments from the single sentence contained in his brief. Next, we would have to

search the appellate record for relevant facts to support those arguments. We would then

have to address (our own) constructed arguments in light of the applicable law and

standards of appellate review. “Our role as an error correction court does not include—

and perhaps does not even permit—our undertaking the efforts required by the Defendant’s

submission.” See id. at *5 (citations omitted). As such, in the absence of any argument

upon which we could conduct meaningful appellate review, we have no choice but to find

that the Defendant has waived this issue. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim.

App. R. 10(b). The Defendant is not entitled to relief on this ground.

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B. N OTICE OF E NHANCED P UNISHMENT

The Defendant next argues that the trial court improperly sentenced him as a Range

III, persistent offender. More specifically, he asserts that he was not given the required

statutory notice before trial that the State would seek to have him sentenced in Range III

upon conviction. See Tenn. Code Ann. § 40-35-202(a) (2019). He contends that the State’s

pretrial notice would only have permitted the trial court to impose a Range II sentence and

that the court improperly considered the State’s amended notice to sentence him in a higher

range.

In response, the State acknowledges the possibility of a split in authority regarding

whether an amended, post-trial notice can permit a trial court to sentence in an enhanced

range. However, it contends that the original notice substantially complied with the

statutory requirements and that the Defendant was properly sentenced as a Range III,

persistent offender. We agree with the Defendant.

1. Standard of Appellate Review

The Defendant asserts that the State’s notice of enhanced punishment was

insufficient to place him on notice that it would seek to have him sentenced as a Range III

offender. Issues involving the sufficiency of a notice of enhanced punishment are questions

of law subject to de novo review. See State v. Williams, 558 S.W.3d 633, 639 (Tenn. 2018);

State v. Tidwell, No. E2021-00711-CCA-R3-CD, 2022 WL 2443401, at *5 (Tenn. Crim.

App. July 5, 2022), perm. app. denied (Tenn. Dec. 14, 2022).

2. Statutory Framework for Enhanced Range and Notice

In Tennessee, a defendant’s sentencing range is determined by considering two

variables: the offense class and the defendant’s offender classification. State v. Menke,

590 S.W.3d 455, 464 (Tenn. 2019). The offender classification has five separate “ranges”

of increasing punishment, determined by the defendant’s history of prior felony criminal

convictions. See State v. Bise, 380 S.W.3d 682, 691 (Tenn. 2012); Tenn. Code Ann. §§ 40-

35-105 to -109 (2019).

For example, a defendant may be classified as a Range II, multiple offender when

he or she has a minimum of two prior qualifying felony convictions. See Tenn. Code

Ann. § 40-35-106(a)(1). Among other things, a qualifying felony conviction for Range II

purposes is one that is within either (i) the same offense class as the instant conviction

offense; (ii) a higher class; or (iii) the next two lower felony classes. See id. Thus, if a

defendant is sentenced for a Class B felony, an otherwise qualifying prior conviction for a

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Class A, B, C, or D felony may be counted toward a Range II classification. However, a

prior conviction for a Class E felony could not be counted, because “a Class E felony is

not within the next two lower felony classifications.” See id., Sent. Comm’n Cmts.

Importantly, even if a defendant qualifies for sentencing in an enhanced range, the

State has discretion not to seek that punishment. State v. Purvis, No. W2016-00386-CCA-

R3-CD, 2017 WL 1192115, at *6 (Tenn. Crim. App. Mar. 30, 2017), perm. app. denied

(Tenn. July 19, 2017). However, if the State intends to seek enhanced punishment, it must

provide pretrial notice to both the court and the defendant in compliance with statutory

requirements. Id. (citations omitted); see also State v. Adams, 788 S.W.2d 557, 559 (Tenn.

1990) (“The Legislature has expressly placed the responsibility of notice upon the district

attorney, along with the discretion to seek enhanced sentencing.”). These requirements are

as follows:

If the district attorney general believes that a defendant should be sentenced

as a multiple, persistent or career offender, the district attorney general 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. . . . [The 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. Code Ann. § 40-35-202(a); see also Tenn. R. Crim. P. 12.3(a) (“If the district attorney

general intends to seek an enhanced punishment as a multiple, persistent, or career

offender, the district attorney general shall file notice of this intention not less than ten (10)

days before trial. If the notice is untimely, the trial judge shall grant the defendant, on

motion, a reasonable continuance of the trial.”).

According to the statute’s plain language, when the State seeks punishment in an

enhanced range, the notice must be filed before trial and must set forth “the nature of the

prior felony conviction[s], the dates of the convictions, and the identity of the courts of the

convictions.” State v. Livingston, 197 S.W.3d 710, 713-14 (Tenn. 2006). As the comments

to Rule 12.3 provide, the requirements of pretrial notice “will allow defense lawyers an

opportunity to plan their trial strategy or engage in appropriate plea negotiations.” Tenn.

R. Crim. P. 12.3, Advisory Comm’n Cmts. Thus, where the State files a late notice, the

defendant’s remedy is a continuance of the trial itself “to rechart a course of action.” Id.

The key issue in this case is whether the State can update its notice after the trial to

identify new convictions that would result in a higher sentencing range. While the parties

have not identified a case that has addressed the notice requirement in this precise context,

several principles can be derived from our case law.

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a. General Rule Requiring Pretrial Notice

The general rule is simple: where the State seeks punishment in an enhanced range,

it must give notice setting “forth the nature of any prior convictions which will later be

utilized for sentencing enhancement purposes” at least ten days before trial. See Tenn.

Code Ann. § 40-35-202, Sent. Comm’n Cmts. (emphasis added). Therefore, generally

speaking, two basic principles are present.

First, when “no pretrial notice is filed at all, the trial court must sentence the

defendant as a standard, Range I offender.” Williams, 558 S.W.3d at 640; State v. Ross,

No. W2006-01167-CCA-R3-CD, 2007 WL 3254436, at *7 (Tenn. Crim. App. Nov. 2,

2007) (“However, because the State completely disregarded the notice requirement, we

must conclude that the trial court should have sentenced the appellant as a Range I offender

and that the case must be remanded for resentencing.”), perm. app. denied (Tenn. June 30,

2008).

Second, when the State gives pretrial notice of a particular range, but identifies the

supporting convictions for the first time after trial, the notice is insufficient to support

enhanced punishment. In that case, the trial court must also sentence the defendant as a

standard, Range I offender. See State v. Lee, No. M2010-00103-CCA-R3-CD, 2011 WL

1085110, at *7 (Tenn. Crim. App. Mar. 23, 2011) (so holding where a range was specified

in the original notice), no perm. app. filed; State v. Shorty, No. W2009-02284-CCA-R3-

CD, 2010 WL 5313268, at *5 (Tenn. Crim. App. Dec. 20, 2010) (so holding where no range

was specified in the notice), no perm. app. filed; State v. Barnes, No. W2003-02967-CCA-

R3-CD, 2005 WL 331376, at *12 (Tenn. Crim. App. Feb. 11, 2005) (suggesting in dicta

that the trial court could not consider convictions contained in an amended notice filed after

trial), no perm. app. filed.

b. Post-Trial Adjustments to the Notice: Waiver and Lack of

Prejudice

However, although the law generally requires pretrial notice, there are at least three

circumstances in which the State may make post-trial adjustments to its prior notice. First,

the State may correct clerical errors in its pretrial notice sometime after trial, at least so

long as the State adds no new convictions to the pretrial notice. See State v. Peden, No.

M2015-01252-CCA-R3-CD, 2016 WL 5210765, at *16 (Tenn. Crim. App. Sept. 19, 2016),

perm. app. denied (Tenn. Dec. 14, 2016) (allowing correction of errors in the offense dates

listed in the original notice and noting, “Significantly, the State did not add any additional

convictions to the amended notice that were not contained in the original notice.”); State v.

Hadley, No. W2014-00985-CCA-R3-CD, 2015 WL 5001166, at *6 (Tenn. Crim. App. Aug.

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21, 2015), perm. app. denied (Tenn. Dec. 11, 2015) (allowing correction of the range

specified in the notice where no new convictions were identified in the amended notice).

Second, the Defendant may waive the State’s pretrial notice. Our courts have

recognized the unremarkable principle that, where a defendant does not object, the State

can make post-trial adjustments to its pretrial notice. Thus, for example, if a defendant

does not object to the State adding new convictions to its notice after trial, the trial court

may sentence the defendant within a higher range. See, e.g., State v. Murphy, No. W2011-

00744-CCA-R3-CD, 2012 WL 1656735, at *10 (Tenn. Crim. App. May 9, 2012) (“The

defendant’s failure to object to the Alabama convictions being used to enhance his range

permitted the trial court to utilize those convictions for determining the appropriate range

classification.”), perm. app. denied (Tenn. Sept. 19, 2012); State v. Harbison, No. 03C01-

9808-CR-00271, 1999 WL 804056, at *6 (Tenn. Crim. App. Oct. 6, 1999), perm. app.

denied (Tenn. Apr. 10, 2000).

The same is true when the State substantially complies with its notice obligations

but omits or misidentifies a detail of the required information. The State is not required to

file a perfect notice, but fair notice is required. See Livingston, 197 S.W.3d at 713. Thus,

when the State substantially complies with its statutory obligations, “an accused has a duty

to inquire about an ambiguous or incomplete notice and must show prejudice to obtain

relief.” Adams, 788 S.W.2d at 559; State v. Taylor, 63 S.W.3d 400, 412 (Tenn. Crim. App.

2001) (“The supreme court specifically held that ‘when the State has substantially

complied with Section 40-35-202(a), an accused has a duty to inquire about an ambiguous

or incomplete notice and must show prejudice to obtain relief.’”).

To that end, we have recognized that where a defendant does not object or seek

clarification of an ambiguous or incomplete notice, the State may clarify or adjust the

notice after the trial.2 These circumstances may occur in a few ways, such as the following:

● Additional Convictions Listed: When the State lists more convictions than

necessary to support the noticed range, and the defendant does not object or

seek clarification, the court may use the listed convictions to sentence the

defendant in a higher range. See Purvis, 2017 WL 1192115, at *7.

● Too Few Convictions Listed: When the State lists fewer convictions than

necessary to establish the noticed range, and the defendant does not object or

seek clarification, the court may allow the State to identify additional

2

We emphasize the supreme court’s caution that “it is the State’s responsibility to assert the

appropriate sentencing status in the first instance, and it may not shift these burdens to an accused by filing

what is essentially an empty notice.” Adams, 788 S.W.2d at 559; see also Taylor, 63 S.W.3d at 412.

9

convictions after trial to meet the requirements of the initially noticed range.

See State v. Gooch, No. M2011-01135-CCA-R3-CD, 2012 WL 4358195, at

*11, 14 (Tenn. Crim. App. Sept. 25, 2012), perm. app. denied (Tenn. Feb. 15,

2013).

● Incorrect Convictions Listed: Where the State lists a conviction that does

not involve the defendant, and the defendant does not object, seek

clarification, or show prejudice, the court may permit the State to identify

additional convictions after trial or a plea to establish the originally noticed

range. See State v. Mangrum, No. 01C01-9508-CR-00259, 1996 WL

448132, at *3 (Tenn. Crim. App. Aug. 9, 1996).

Finally, the State can make post-trial adjustments to the noticed range when the

defendant suffers no prejudice. One example of this circumstance can occur when a

defendant is convicted of a lesser-included offense. Parties are always on notice that

sentencing exposure will vary “depending on the actual verdict of the jury.” State v. Hines,

No. 01C01-9406-CC-00189, 1995 WL 316304, at *5 (Tenn. Crim. App. May 25, 1995),

perm. app. denied (Tenn. Nov. 6, 1995). Thus, a prior conviction that could not be used to

enhance the range for a Class A or B felony conviction, for example, may be eligible for

that purpose when the sentence is for a lesser class offense. Accordingly, where the State’s

pretrial notice lists more convictions than are necessary to establish its noticed range, it

may use those additional convictions to seek a higher sentencing range when the defendant

is convicted of a lesser-included offense. See id.

3. The State’s Post-Trial Notice in this Case

With these principles in mind, we conclude that the State’s post-trial notice did not

comply with Tennessee Code Annotated section 40-35-202(a). The State originally

notified the Defendant that it would seek a sentence in Range II, and it identified two

convictions that, if otherwise qualifying, would have established that range. This pretrial

notice contained no ambiguity, and Defendant had no occasion to seek any clarification.

See Williams, 558 S.W.3d 642.

Immediately after the trial, however, the State served an amended notice seeking

sentencing in Range III and identified additional convictions to support that higher range.

Although the State was aware of the additional convictions and could have identified them

before trial, it did not do so. When the State served its amended notice, the remedy

identified by Tennessee Rule of Criminal Procedure 12.3—a continuance of the trial—was

no longer available. The Defendant also properly objected to the post-trial notice well in

advance of the sentencing hearing. Under these circumstances, the State’s amended, post-

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trial notice did not comply with Tennessee Code Annotated section 40-35-202(a), and the

trial court could not have relied upon it to sentence the Defendant in Range III.

Challenging this conclusion, the State asserts that it did not list these additional

convictions earlier because they only became relevant for sentencing once the Defendant

was convicted of lesser-included offenses. Thus, it argues, the statute only requires pretrial

notice of convictions that could be used to enhance the range for the charged offenses. For

two reasons, we respectfully disagree.

First, the State’s argument ignores that the parties are always on notice that the

defendant’s sentencing exposure ultimately depends on the jury’s verdict. See Hines, 1995

WL 316304, at *4. Defendants understand that prior convictions disclosed by the State can

enhance a sentence for a lesser-included offense, even if those convictions were not

relevant to sentencing for the charged offense. Id. The State shares this understanding,

and nothing in the plain language of section 40-35-202(a) suggests that the State may

selectively disclose some convictions before trial, while withholding others until after the

verdict. To comply with the statute, the State must simply give pretrial notice of all prior

convictions that could be used to enhance a defendant’s range, accounting for both the

charged offense and any lesser-included offenses.

Second, the State’s argument ignores the Defendant’s second charged offense, a

Class D felony. As this offense was charged, each of the Defendant’s five prior convictions

was eligible to enhance his sentence to Range III upon conviction. However, as was its

prerogative, the State notified the Defendant that it only sought punishment in Range II,

and it identified only two of the Defendant’s five eligible convictions for that purpose.

Purvis, 2017 WL 1192115, at *6. When the jury returned a conviction on the offense as

charged, the State then immediately disclosed additional convictions and sought sentencing

in a higher range than originally noticed. Respectfully, this practice of post-trial

notification did not even arguably comply with section 40-35-202(a) with respect to the

second charged offense. See Lee, 2011 WL 1085110, at *7.

Ultimately, the State was aware of three facts when it served its original pretrial

notice: (1) that the Defendant’s actual sentencing exposure varied depending on the verdict

of the jury; (2) that the Defendant had additional convictions that were not included in its

pretrial notice; and (3) that the additional convictions could be relevant to an enhanced

range of punishment if the jury returned a verdict on a lesser-included offense. The original

notice was not ambiguous, and the Defendant properly objected to the amended, post-trial

notice well before sentencing.

Under these circumstances, the State’s amended, post-trial notice could not be used

to enhance the Defendant’s sentencing range. Accordingly, we respectfully remand the

case for the trial court to resentence the Defendant as a Range II, multiple offender.

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CONCLUSION

In summary, we hold that the trial court acted within its discretion in imposing

consecutive sentences. However, we also hold that the State’s notice of enhanced

punishment required by Tennessee Code Annotated section 40-35-202(a) was insufficient

to support sentencing the Defendant as a Range III, persistent offender. As such, we

respectfully remand the case to the trial court to sentence the Defendant as a Range II,

multiple offender.

S/ Tom Greenholtz

TOM GREENHOLTZ, JUDGE

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