Assigned on Briefs May 2, 2017
from the Criminal Court for Shelby County No. 03-01405 James
C. Beasley, Jr., Judge
defendant, Torian Dillard, appeals from the Shelby County
Criminal Court's denial of his Tennessee Rule of Criminal
Procedure 36.1 motion to correct an illegal sentence. The
defendant contends his sentences are illegal because the
State failed to provide proper notice of its intent to seek
enhanced punishment pursuant to Tennessee Code Annotated
§ 40-35-202(a). The defendant also argues the trial
court improperly relied on two prior theft convictions in
classifying him as a career offender. Discerning no error, we
affirm the judgment of the trial court.
R. App. 3 Appeal as of Right; Judgment of the Criminal Court
Dillard, Mountain City, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Karen Cook, Assistant
District Attorney General, for the appellee, State of
Ross Dyer, J., delivered the opinion of the court, in which
Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.
ROSS DYER, JUDGE
February 10, 2003, the defendant shot his ex-girlfriend in
the head, but failed to kill her, while she and her
one-year-old daughter waited to pick up her other children
from school. After a jury trial, the defendant was convicted
of attempted first degree murder, a Class A felony, and
reckless endangerment with a deadly weapon and being a
convicted felon in possession of a handgun, Class E felonies.
to trial, on October 21, 2003, the State filed a notice of
intent to seek enhanced punishment. The notice listed six
prior felonies upon which the State intended to rely,
including: failure to appear and escape, Class E felonies,
theft over $500 and robbery, Class D felonies, and attempted
rape and aggravated assault, Class C felonies. The trial
court held a sentencing hearing on November 12, 2004. At the
sentencing hearing, the State orally amended its notice to
reflect the defendant's prior robbery conviction was
actually a prior conviction for theft over $1, 000. The State
noted that defense counsel stipulated to the defendant's
prior convictions as listed in the pre-sentence report, and
reminded the trial court that the convictions "were also
admitted to by [the defendant] on the stand." See
State v. Torian Dillard, No. W2005-00152-CCA-R3-CD, 2006
WL 1044087, at *6 (Tenn. Crim. App. Apr. 19, 2006), perm.
app. denied (Tenn. Sept. 5, 2006).
this posture, the State read the defendant's prior
convictions into the record, as follows:
The defendant's been convicted of failure to appear, a
Class E felony under Indictment No. 98-13998. He's been
convicted of criminal-attempt rape, a Class C felony under
Indictment No. 98-01386. He's been convicted of
aggravated assault, a Class C felony ...