State v. Ralph Miller

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 14, 1998
• Docket: 02C01-9709-CC-00361
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MAY 1998 SESSION FILED July 14, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9709-CC-00361 Appellee, ) ) FAYETTE COUNTY VS. ) ) HON. JON KERRY BLACKWOOD, RALPH MILLER, ) JUDGE ) Appellant. ) (Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

GARY ANTRICAN JOHN KNOX WALKUP District Public Defender Attorney General & Reporter

SHANA C. McCOY-JOHNSON JANIS L. TURNER Asst. Public Defender Counsel for the State P.O. Box 700 John Sevier Bldg. Somerville, TN 38068 425 Fifth Ave., North Nashville, TN 37243-0493

ELIZABETH T. RICE District Attorney General 302 Market St. East Somerville, TN 38068

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge OPINION

The defendant was indicted for felony escape, a Class E felony. He pled

guilty, and the trial court sentenced him as a Range III career offender. In this appeal as

of right, the defendant contends that the State failed to prove he qualified for sentencing

as a Range III career offender. We affirm.

In seeking enhanced sentencing for the defendant, the State relied upon

T.C.A. § 40-35-108(a)(3), which provides for sentencing as a career offender if the

defendant’s current offense is a Class D or E felony and he has at least six prior felony

convictions of any classification. In its notice of intent to seek enhanced punishment, the

State listed convictions for nine prior felony offenses. The presentence report recites

these same convictions plus two others. Although both parties acknowledge that a

sentencing hearing was held, the record on appeal does not include a transcript of the

sentencing hearing. The record on appeal does include two “exhibits,” which include

certified copies of court records from less than six prior convictions, but without a

transcript, it is unclear whether these documents were introduced into evidence or

otherwise used in sentencing the defendant.

The essence of the defendant’s argument is that the State has failed to

sufficiently prove that the defendant has the six prior felony offenses necessary to justify

career offender sentencing under T.C.A. § 40-35-108(a)(3). The defendant’s argument

must fail, however, as he has not shown reversible error from the record.

When the State is seeking an enhanced sentence for a defendant, the State

may prove a defendant’s prior convictions by entering into evidence certified copies of the

2 court records of the prior convictions. See T.C.A. § 40-35-202; Tenn. R. Evid. 902(4).

However, the State need not prove a prior conviction in that manner if the prior conviction

“is set forth in the presentence report and it is not contradicted.” State v. Roland Hayes

Edmonds, C.C.A. No. 03C01-9308-CR-00291, Hamilton County (Tenn. Crim. App. filed

January 27, 1995, at Knoxville). The presentence report filed in this case attributes

enough prior felony convictions to the defendant to justify career offender status under

§ 40-35-108(a)(3), but without a transcript of the sentencing hearing, this Court cannot

discern whether the defendant contradicted the information contained in the presentence

report. Without a sufficient record, then, we must presume that the trial court did not err

in sentencing the defendant as a career offender.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Judge

______________________________ THOMAS T. W OODALL, Judge