State of Tennessee v. Kevin Patterson aka John O'Keefe Varner aka John O'Keefe Kitchen-Concurring

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 13, 2016

STATE OF TENNESSEE v. KEVIN PATTERSON AKA JOHN O’KEEFE

VARNER AKA JOHN O’KEEFE KITCHEN

Appeal from the Circuit Court for Coffee County No. 41,631F Walter Kurtz, Judge

No. M2015-02375-CCA-R3-CD – Filed December 7, 2016

ROBERT L. HOLLOWAY, JR., J., concurring.

I concur with the lead opinion. I write separately because I am sympathetic to the common sense approach that Judge Easter uses in the separate opinion (dissenting in part) to determine that the pre-trial notice substantially complied with the requirements of Tennessee Code Annotated section 40-35-120. After all, the violent nature of the prior offenses, second degree murder and facilitation of second degree murder, should be obvious, and who knows better than the Defendant that there were separate periods of incarceration, even if the Defendant does not know the dates of those periods. An argument could also be made that a reasonable statutory interpretation of Tennessee Code Annotated section 40-35-120(i)(2) is that “shall” is mandatory as it relates to “[t]he district attorney general[‟s] fil[ing] a statement with the court,” but “shall” is “merely directory” as it relates to “set[ting] forth the dates of the prior periods of incarceration, as well as the nature of the prior conviction offenses.” See Tenn. Code Ann. § 40-35- 120(i)(2); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012). In Myers v. AMISUB (SFH), Inc., our supreme court stated: “To determine whether the use of the word „shall‟ in a statute is mandatory or merely directory, we look to see „whether the prescribed mode of action is of the essence of the thing to be accomplished.‟” Id. (citing 3 Norman J. Singer & J.D. Singer, Statutes and Statutory Construction § 57:2 (7th ed. 2008)); see also Holdredge v. City of Cleveland, 218 Tenn. 239, 402 S.W.2d 709, 713 (1966) (“[A] provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute . . . shows that the legislature intended a compliance with such provision to be essential to the validity of the act . . . , the statute must be regarded as mandatory.”). Arguably, the essence to be accomplished by section 40-35-120(i)(2) is to place a defendant on notice that the state intends to seek to have him found to be a repeat violent offender and thereby face a sentence of life without possibility of parole. If this statement is correct, then the other requirements are “merely directory” and substantial compliance should be sufficient.

However, in light of our supreme court‟s opinion in Cooper, if less than strict compliance with the mandatory language of the notice required under the repeat violent offender statute is sufficient to advise a Defendant that he may be facing a sentence of life without possibility of parole, I believe that should be decided by our supreme court.1

Until our supreme court holds otherwise, it would be wise to strictly comply with the notice requirements of section 40-35-120.

__________________________________ ROBERT L. HOLLOWAY JR., JUDGE