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State v. Purvis

Court of Criminal Appeals of Tennessee, Jackson

March 30, 2017

STATE OF TENNESSEE
v.
PAUL WILLIAM PURVIS

          Assigned on Briefs November 1, 2016

         Appeal from the Circuit Court for Gibson County No. 18583 Clayburn Peeples, Judge

         The Defendant, Paul William Purvis, entered a best interest guilty plea to theft of property valued over $10, 000, a Class C felony. The guilty plea was entered several years after the State had filed a notice that it intended to seek enhanced punishment. The State's notice listed twelve prior convictions and stated that it would seek to sentence the Defendant as a Range II, multiple offender. The parties did not negotiate a sentence as part of the plea agreement but left determination of the sentence up to the court. At the sentencing hearing, the State sought to have the Defendant sentenced as a Range III, persistent offender. The trial court sentenced the Defendant to ten years' imprisonment as a Range III, persistent offender, and the Defendant appeals, asserting that he is entitled to be sentenced as a Range II offender due to the State's inadequate notice. After a thorough review of the record, we conclude that the State's notice was ambiguous. However, because the Defendant has not shown that he investigated the ambiguity and has not shown prejudice from the ambiguous notice, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Anna B. Cash, Jackson, Tennessee, for the appellant, Paul William Purvis.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Garry G. Brown, District Attorney General; and Hillary Parham (at sentencing hearing and plea hearing) and Stephanie J. Hale (at pretrial motions), Assistant District Attorneys General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Camille R. McMullen and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The Defendant was indicted on July 5, 2011, for one count of theft of property valued over $60, 000, a Class B felony, based on the 2010 theft of numerous antique ornaments and ceramics from the victim's place of business.

         The prosecution filed a notice that the State would seek to punish the Defendant as a Range II offender and listed the following convictions as the basis for enhanced punishment:

1995 THEFT OVER $ 1000.00

Dyer County, TN Docket No. C94234

1995 THEFT OVER $ 1000.00

Dyer County, TN Docket No. C94234

1995 THEFT OVER $ 1000.00

Gibson County, TN Docket No. 15068

1993 THEFT OVER $500.00

Gibson County, TN Docket No. 14644

1993 THEFT OVER $ 1000.00

Gibson County, TN Docket No. 14644

1993 THEFT OVER $500.00

Gibson County, TN Docket No. 14669

1993 VBCL OVER $1000.00

Gibson County, TN Docket No. 6170

1993 VBCL OVER $500.00

Henderson County, TN Docket No. 93042

1993 VBCL OVER $500.00

Madison County, TN Docket No. 93402

1993 VBCL OVER $500.00

Madison County, TN Docket No. 93402

1993 VBCL OVER $1000.00

Madison County, TN Docket No. 93403

1993 VBCL OVER $500.00

Madison County, TN Docket No. 93403

         The Defendant entered an open guilty plea to theft of property valued over $10, 000, a Class C felony, on October 21, 2015. At the January 29, 2016, sentencing hearing, the prosecutor commenced by calling the court's attention to several mistakes on the notice of enhancement filed in 2011 by another prosecuting attorney. Among the errors noted were a 1993 conviction for violation of the bad check law that was a misdemeanor and could not be considered in establishing the Defendant's range, incorrect docket numbers on two convictions from 1993, and listing two Class E felonies that occurred within a twenty-four hour period separately for enhancement purposes. See T.C.A. § 40-35-106(b)(4) (noting that "convictions for multiple felonies committed within the same twenty-four-hour period constitute one (1) conviction for the purpose of determining prior convictions").

         The prosecutor then stated that the Defendant was actually a Range III offender because he had six prior Class D felony convictions and five prior Class E felony convictions and because the six Class D felonies and four of the Class E felonies would count toward establishing range. She argued that, despite the fact that the notice asserted the Defendant was a Range II offender, the Defendant should be sentenced as a Range III offender because the notice listed his numerous previous offenses and because this constituted an ambiguity into which the Defendant had a duty to inquire.

         At prompting from the trial court asking if the Defendant objected to sentencing as a Range III offender based on lack of notice, defense counsel stated, "I guess I need to." The trial court offered the Defendant the opportunity for a ...


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