State v. Ralph Miller ( 1998 )

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
3