# State v. Robert Gwin > Court of Criminal Appeals of Tennessee · October 13, 1997 URL: https://www.frixlaw.com/law-library/cases/1083295 ## Case - **Court:** Court of Criminal Appeals of Tennessee - **Decided:** October 13, 1997 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1083295 ## Opinion text IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON SEPTEMBER SESSION, 1996 FILED October 13, 1997 ROBERT IRWIN GWIN, ) C.C.A. NO. 02C01-9512-CR-00380 ) Cecil Crowson, Jr. Appellant, ) Appellate C ourt Clerk ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. BROWN, JR. STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction Relief) FOR THE APPELLANT: FOR THE APPELLEE: D. TYLER KELLY CHARLES W. BURSON Hardee, Martin & Jaynes, P.A. Attorney General and Reporter 213 E. Lafayette Street Jackson, TN 38301 WILLIAM DAVID BRIDGERS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 JOHN H. PIEROTTI District Attorney General JOHN CAMPBELL Assistant District Attorney 3rd Floor, Criminal Justice Complex 201 Poplar Memphis, TN 38103 OPINION FILED ________________________ REVERSED AND REMANDED JERRY L. SMITH, JUDGE OPINION Appellant Robert Irwin Gwin appeals from the dismissal of his petition for post-conviction relief. On May 21, 1973, Appellant was found guilty of first degree m urder in the perp etration of a felony and was senten ced to 100 ye ars imprisonment. This Court affirmed the conviction in Gwin v. S tate, 523 S.W.2d 636, 639 (Tenn. Crim. App. 1975). In January 1979, former Governor Ray Blanton commuted Appellant’s sentence to time served. On April 21, 1994 , the T enne ssee Boar d of Pa rdons and P aroles regain ed cu stody o f Gwin from the Georgia Department of Correction due to an alleged commutation violation. On December 20, 1994, former Governor Ned McWherter revoked the commutation thereby reinstating the original 100-year sentence. On November 16, 1995, Appellant filed a pro se petition for post-conviction relief which alleged that he received an unconstitutional sentence. For the reasons stated below, we reverse and remand the judgment of the post-conviction court. Appellant argues that he was sentenced under a statute which was declare d unco nstitutiona l by the Te nness ee Sup reme C ourt case of State v. Hailey, 505 S.W.2d 712 (Tenn. 1974), and that therefore the sentence he receive d was null an d void. T he Sta te claim s that A ppella nt’s pe tition is barred by the statute of limitations found in Tennessee Code Annotated Sectio n 40-3 0-102 (1990 ) (repe aled). W hile ac know ledgin g that h is petitio n is well beyond the applicable three year statute of limitations, Appellant alleges that his sentence is void and illegal and may be challenged any time. -2- An analysis of Appellant’s claims requires a synopsis of the history of Tennessee statutes governing the punishment for murder. In 1915, the Tennessee state legislature enacted Chapter 181 of the Public Acts of 1915 (the 19 15 Ac t) which abolis hed th e dea th pen alty in T enne ssee and re place d it with a mandatory sentence of life imprisonment. 1915 Tenn. Pub. Acts, Ch. 181. In 1919, the legislature adopted Chapter 5 of the Public Acts of 1919 (the 1919 Act) which provided that persons convicted of murder would be sentenced to death, or if the jury believed that there were mitigating circumstances, they could impose a sentence of life or some period over twenty years. Tenn. Code Ann. § 39-2406 (1955 & 1972 replacements) (repealed). Appellant was sentenced under this statute. In June of 1972, the United States Supreme Court decided Furm an v. G eorgia, 92 S.Ct. 2726 (1972), which acknowledged certain constitutional restrictions on the imposition of the death penalty by states. In 1973, the legislature enacted Chapter 192 of the Public Acts of 1973 (the 1973 Act), which repealed section 39-2406 and replaced it with a new section 39-2406. 1973 Tenn. Pub. Acts, Ch. 192, § 2. Under the new section 39-2406, a jury could sentence a person convicted of m urder to death , life imprisonmen t or some pe riod over twenty- five years. In February 1974, the Tennessee Supreme Court in State v. Hailey held that the 1973 Act was unconstitutional as it embraced more than one subject a nd was broade r than its title. 505 S.W .2d 712 , 715 (T enn. 19 74). In response to the Hailey and Furman decisions, the T ennesse e legislature enacted Chapter 462 of the Public Acts of 1974 (the 1974 Act) which provided that all pers ons co nvicted of firs t degree murde r would re ceive the d eath penalty. 1974 Tenn. Pub. Acts, Ch. 462. In 1977, in response to several U.S. Supreme Court cases interpreting the Fifth and Fourteen Amendments to the -3- U.S. Constitution as prohibiting a mandatory death penalty, the Tennessee Supreme Court decided Collins v. S tate, 550 S.W.2d 643 (Tenn. 1977), which declared the 1974 Act unconstitutional. It also held that the invalidation of the 1974 Act revived the 1919 Act’s sentencing provisions, with the exception of 1919 Act’s death penalty provision which the Court held did not prescribe sufficiently detailed procedures to accomplish “controlled discretion” as required by Furm an v. G eorgia when a jury imposed a death sentence. 550 S.W.2d at 646. In April 1977, Chapter 51 of the Public Acts of 1977 (the 1977 Act) was enacte d which again m ade the impos ition of the de ath pen alty discretionary with the jury. 1977 Tenn. Pub. Acts, Ch. 51. In 1979, the Tennessee Supreme Court decided Miller v. State , which he ld that life imprisonm ent was the e xclusive punishm ent for first degree m urder for a defendant convicted of murder before the effective date of the 1977 Act. 584 S.W.2d 758, 762 (Tenn. 1979). The Court noted that the Collins decision effectively inva lidated all de ath pen alty provision s going b ack to the 1915 A ct, which had life impris onm ent as the so le pun ishm ent for m urder . It also h eld that because the 1919 Act did not have a severability clause, all of the senten cing prov isions of the 1919 A ct were u ncons titutional, not ju st the dea th penalty provision. 584 S.W.2d at 765. In several cases this Court has followed Miller and m odified sente nces to life im prison men t. For ins tance , in Wy nn v. State , we modified the 99-year sentence of a defendant convicted of murder under the 1919 Act to life imprisonment. No. 03-C-01-9212-CR- 00399; 1993 WL 153198, at *1 (Tenn. Crim. App., May 12, 1993). Our decision in Wynn had the effect of red ucing the amou nt of time W ynn had to serve before he wa s eligible for paro le. App arently , this is wh y App ellant is appealing his 100-year sentence. -4- As stated previously, Appellant claims that he was sentenced under the statute which w as declared unconstitutional by State v. Hailey, 505 S.W.2d 712. In Hailey, Chapter 192 of the Public Acts of 1973 was declared uncon stitutional. Id. at 714. Appellant was sentenced under the 1919 Act and therefore , Hailey does not support Appellant’s position. Nevertheless, the statute Appellant was sentenced under, Chapter 5 of the Public Acts of 1919, was de clared un constitution al in the T ennes see Su preme Court de cision of Miller v. State , 584 S.W.2d 758, 765 (Tenn. 1979). The State acknowledges that an illegal sentence may be challenged and corrected at any time. See State v. Burkha rt, 566 S.W .2d 871 , 873 (T enn. 19 78). How ever, the S tate further arg ues tha t an “illegal se ntence ” within the m eaning of Burkhart is a senten ce imp osed in d irect contra vention o f the expre ss provisio ns of a statute . Since , Appe llant’s se ntenc e was perm itted by th e mu rder sta tute in effect when he was convicted, the State argues that, despite the later declared uncon stitutionality of the statute, the senten ce is me rely voidab le, not void. Therefore, the State maintains any post-conviction petition seeking to correct the sen tence m ust be filed within the a pplicable statute of lim itations for po st- conviction petitions. Because Appellant waited well-beyond the limitations period to file his petition th e State m aintains A ppellant is n ot entitled to re lief. We are not inclined to read Burkhart in the niggardly fashion suggested by the Sta te. W hile it is true that Burkhart itself dealt with a sentence imposed in contravention of a statute, nothing in that opinion limits the definition of an illegal sentence to the situation posed in that case. We hold that a sentence imposed under a statute that has been declared unconstitutional by our highest state court is an illegal sentence and may be corrected at any time. -5- Accordingly, the judgment of the post-conviction court is reversed; Appe llant’s se ntenc e is mo dified to a term of life im prison men t. This c ase is remanded to the trial court for execution of judgment and collection of costs. ____________________________________ JERRY L. SMITH, JUDGE CONCUR: ___________________________________ JOE B. JONES, PRESIDING JUDGE ___________________________________ DAVID H. WELLES, JUDGE -6- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1083295. Public record. Not legal advice.