Session October 11, 2017
by Permission from the Court of Criminal Appeals Circuit
Court for Coffee County No. 41631F Walter C. Kurtz, Sp.
Judge, sitting by designation
granted this appeal to determine whether deficiencies in the
State's timely filed notice of intent to sentence the
defendant to life imprisonment without the possibility of
parole as a repeat violent offender entitle the defendant to
relief via the plain error doctrine. We conclude that,
although imperfect, the timely filed notice fairly informed
the defendant of the State's intent to seek enhanced
sentencing and triggered the defendant's duty to inquire
into the errors and omissions. Furthermore, the defendant has
failed to establish that the deficiencies in the notice
adversely affected his substantial rights-a necessary
criterion for obtaining relief via the plain error doctrine.
Accordingly, we reverse in part the Court of Criminal
Appeals' judgment, insofar as it set aside the
defendant's sentence of life without parole and remanded
to the trial court for resentencing, and we reinstate the
judgment of the trial court in all respects.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Reversed in Part; Judgment of the Trial
Herbert H. Slatery III, Attorney General and Reporter;
Andrée S. Blumstein, Solicitor General; Brent C.
Cherry, Senior Counsel; and Craig Northcott, District
Attorney General, for the appellant, State of Tennessee.
E. Nicoll, District Public Defender (on appeal); and Daniel
Marshall, Nashville, Tennessee (at trial), for the appellee,
Kevin Patterson aka John O'Keefe Varner aka John
Cornelia A. Clark, J., delivered the opinion of the court, in
which Jeffrey S. Bivins, C.J., and Sharon G. Lee, Holly
Kirby, and Roger A. Page, JJ., joined.
CORNELIA A. CLARK, JUSTICE
only issue in this appeal is the sufficiency of the notice
the State provided to the defendant, John O'Keefe Varner,
 of its
intent to sentence him as a repeat violent offender to life
imprisonment without the possibility of parole under the
three strikes law. Tenn. Code Ann. § 40-35-120(i)(2)
(2014 & 2017 Supp.). Therefore, we forgo a detailed
recitation of the proof offered at trial to support the
defendant's convictions of attempted second-degree
murder, aggravated assault, and being a felon in possession
of a firearm and recite the following summation for context.
victims, Brandi Frazier and Scott Wilfong, visited their
friend Donald Brewer in early February 2013. Mr. Brewer lived
near the defendant, and the defendant's girlfriend drove
Ms. Frazier to a liquor store in the defendant's truck.
When they returned, the defendant pulled his girlfriend from
the vehicle by her hair and struck her. Ms. Frazier got out
of the truck, shouting and cursing at the defendant. Ms.
Frazier and Mr. Wilfong had never met the defendant before
that day. The defendant approached Ms. Frazier in an
aggressive manner with his arm raised, and she hit him twice
on the side of his head with a bottle of rum to stop his
advance. Mr. Wilfong then intervened, and he and the
defendant exchanged angry words, but the altercation ended
when Mr. Wilfong and Ms. Frazier returned to their
friend's nearby home. The entire incident lasted only
five or ten minutes, and Mr. Wilfong gave it little thought
afterwards, believing everything had calmed.
Wilfong's belief proved incorrect. On February 9, 2013,
Mr. Wilfong and Ms. Frazier visited the home of J.D. Martin
and Heather Gilbert to talk about ways to raise bail money
for their mutual friend, Mr. Brewer, who had been arrested
and jailed. During their visit, Mr. Brewer's estranged
wife, Natalie Brewer, and the defendant arrived uninvited at
the home. Ms. Brewer, a longtime friend of Ms. Gilbert,
entered the home without invitation, approached Ms. Frazier,
who had called Ms. Brewer a snitch earlier in the day, and
began swearing and behaving aggressively.
to Mr. Wilfong's testimony, the defendant remained
outside but knocked on the door and told Mr. Wilfong they had
"unfinished business." Interpreting the comment as
a reference to the earlier argument, Mr. Wilfong went outside
"prepared to fight, " believing from the
defendant's tone that they "were probably about to
be in a confrontation." Once outside, Mr. Wilfong, who
was unarmed, saw that the defendant had a handgun.
Inexplicably, Mr. Wilfong declared that he "wasn't
scared of the gun" and "motioned toward [the
defendant] as if to hit him." The defendant "leaned
back and shot at the same time." The bullet struck Mr.
Wilfong in the right hip. Both men "froze for a split
second, " but when the defendant raised and aimed the
gun a second time, Mr. Wilfong ran into the nearby woods.
the gunshot, Ms. Frazier ran outside and saw the defendant
standing and pointing the gun toward the woods. When the
defendant turned the gun on her, Ms. Frazier retreated toward
Ms. Gilbert's vehicle, which was parked nearby. The
defendant lowered his weapon and ran past Ms. Frazier,
striking her in the face as he passed with enough force to
knock her over the hood of Ms. Gilbert's car. The
defendant kept running, got into his truck, where Ms. Brewer
was already waiting, and drove away from the scene.
victims called 911 not long after the incident, but the
police were unable to locate the scene that evening and did
not investigate until the next day. In March 2013, the Coffee
County Grand Jury indicted the defendant with attempted
first-degree murder of Mr. Wilfong and aggravated assault of
Ms. Frazier. However, the defendant fled to Las Vegas,
Nevada, after the incident, and he was not apprehended until
a year and a half later.
his apprehension, on January 1, 2015, the State filed a
document titled "Notice of Prior Convictions, "
The State of Tennessee by and through the Office of the
District Attorney General, Fourteenth Judicial District,
pursuant to [R]ule 609(a)(3) of the Tennessee Rules of
Evidence and T.C.A. § 40-35-202(a) to give the
defendant notice of the following convictions that the
State will seek to introduce to impeach the defendant's
testimony, and/or to enhance the defendant's
punishment. The State of Tennessee also hereby gives notice
to the defendant of its intent to seek to have him declared
as a Repeat Violent Offender pursuant to T.C.A. §
POSS OF FIREARM
SHELBY CO., TN
FAC 2ND DEGREE MURDER
SHELBY CO., TN
POSSESSION OF WEAPON
SHELBY CO., TN
2ND DEGREE MURDER
SHELBY CO., TN
April 2015, a superseding indictment was issued charging the
defendant with attempted first-degree murder of Mr. Wilfong,
aggravated assault of Ms. Frazier, and being a felon in
possession of a firearm. The defendant's trial occurred
July 14-16, 2015. At the beginning of the trial, the parties
entered a written stipulation that the defendant had been
convicted in Haywood County prior to February 2013 of a
felony involving the use of force, violence, and a deadly
weapon, and that the conviction prohibited the defendant from
possessing a firearm. The State relied upon this stipulation
to prove the charge that the defendant ...