State of Tennessee v. Charles Keese

03/15/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

December 19, 2017 Session

STATE OF TENNESSE v. CHARLES KEESE

Appeal from the Criminal Court for Knox County

No. 105631 Scott Green, Judge

No. E2016-02020-CCA-R3-CD

In this appeal, the State challenges the trial court’s decision to apply the amended version

of Code section 39-14-105, which provides the grading of theft offenses, when

calculating the defendant’s sentence. The defendant asserts that the State has no right to

appeal the ruling of the trial court and, in the alternative, that the trial court correctly

applied the amended statute in this case. The defendant also appeals the judgment of the

trial court, claiming that the evidence was insufficient to support his convictions because

the State failed to adequately establish the value of the stolen property. We agree with

the defendant that no appeal of right lies for the State pursuant to either Tennessee Rule

of Appellate Procedure 3 or Code section 40-35-402. Because we have concluded that

the trial court exceeded its authority by the application of the amended version of Code

section 39-14-105 before the effective date, we could treat the improperly-filed Rule 3

appeal as a common law petition for writ of certiorari. We need not do so, however,

because, pursuant to Tennessee Rule of Appellate Procedure 13, this court acquired

jurisdiction of the State’s claim when the defendant filed a timely notice of appeal.

Following our review of the issues presented, we hold that sufficient evidence supports

the defendant’s conviction but that the trial court erred by applying the amended version

of Code section 39-14-105. Accordingly, we affirm the defendant’s conviction but

vacate the six-year sentence imposed by the trial court and remand the case for the entry

of a modified judgment reflecting a 12-year sentence for a Class D felony conviction of

theft of property valued at $1,000 or more but less than $10,000.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Vacated in

Part; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY

THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant

Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald,

Assistant District Attorney General, for the appellant, State of Tennessee.

Brennan M. Wingerter, (on appeal); and Dustin Dunham (at trial), Knoxville, Tennessee,

for the appellee, Charles Keese.

OPINION

The Knox County Grand Jury charged the defendant with alternative counts

of theft of property valued at $1,000 or more but less than $10,000 for thefts occurring on

September 10 and 15, 2014; alternative counts of theft of property valued at more than

$500 but less than $1,000 for thefts occurring on September 10, 2014; and alternative

counts of theft of property valued at more than $500 but less than $1,000 for thefts

occurring on September 15, 2014.1

At the June 29, 2016 trial, Brandy Beene testified that in 2014 she was

romantically involved with the defendant. On September 10 of that year, Ms. Beene

accompanied the defendant to the East Town Walmart, where the defendant added

“several tool sets” to a shopping cart and left the store with the items despite that they

had not paid for them. Ms. Beene identified herself and the defendant on the store’s

video surveillance recording.

According to Ms. Beene, the couple returned to the East Town Walmart on

September 15, 2014, and again the defendant added “tool sets” to a shopping cart. The

couple then wheeled the cart full of items into the parking lot without paying for the

items. Ms. Beene again identified herself and the defendant on the store’s video

surveillance recording. Ms. Beene said that the defendant sold some of the tool sets “at a

flea market or something like that.”

Steven McCarter, who had worked as an asset protection manager at the

East Town Walmart, testified that on September 10, 2014, an associate in the Lawn and

Garden Department told him “that a man and woman had [gone] through the doors with a

1

Counts 1, 3, and 5 allege that the defendant “did unlawfully and knowingly obtain property”

while counts 2, 4, and 6 allege that the defendant “did unlawfully and knowingly exercise control over

property.” See T.C.A. § 39-14-103 (“A person commits theft of property if, with intent to deprive the

owner of property, the person knowingly obtains or exercises control over the property without the

owner’s effective consent.”); State v. Byrd, 968 S.W.2d 290, 292 (Tenn. 1998) (“[T]heft of property may

be accomplished in one of two manners: (1) taking or obtaining property without consent and with an

intent to deprive; or (2) exercising control over property without consent and with the intent to deprive.”).

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buggy full of tools and refused to stop for a receipt check.” Mr. McCarter reviewed the

surveillance video, which showed the defendant and Ms. Beene entering the store at 1:00

p.m. and leaving at 1:03 p.m. Utilizing the video recording, Mr. McCarter identified the

items in the shopping cart and then went to the shelves where those items should have

been located. Using a piece of equipment designed to keep track of the number of items

on each shelf, Mr. McCarter determined that the items he observed inside the cart had

been taken from inside the store. He testified that the missing items included “two of the

Bostitch Power Tool sets that are valued at 189 each, and six drills that were valued at

89.99 each.” Mr. McCarter confirmed that the total value of the items he observed inside

the cart exceeded $500.

Matthew Schoenrock, who had also worked as an asset protection manager

at the East Town Walmart, testified that at approximately 2:10 p.m. on September 15,

2014, an associate in the Garden Center reported “that two subjects had pushed a buggy

full of merchandise out of the Garden Center doors bypassing the registers, failing to pay

for the merchandise.” He said that when another customer approached “the subjects out

at their vehicle while they were loading the merchandise into their car,” the couple

abandoned the shopping cart full of items. The unidentified customer returned the cart

full of items to the store. Mr. Schoenrock then “rung up the merchandise and got a total

for everything.” He described the resultant document as “a training receipt,” which was,

he said, a way for the store to track what had been taken without indicating a sale.

Mr. Schoenrock identified the defendant and Ms. Beene on the surveillance

video. He also identified the items taken by pointing them out inside the shopping cart.

Mr. Schoenrock described the items taken as “just a bunch of hammer drills,

reciprocating saws and some security devices on those saws.” He said that the total value

of the merchandise taken was $478.88 and that the value of the security devices was

$100. He described the security devices as “[s]pider wrap . . . those black wraps that are

around high priced items that go off if they’re tampered with or opened.” He said that

Walmart had made a policy decision to set the value of “the spider wraps as $50.00 each

solely because of the influx of theft that we have at our stores.” He added, “Our store

needs to have compensation because the spider wraps are not cheap. And the difficulty in

obtaining them is even more difficult.” He admitted, however, that he did not know the

replacement cost of the spider wrap and that Walmart did not offer the spider wraps for

sale.

Following a Momon colloquy, the defendant elected not to testify and chose

to present no proof. Based on the proof presented at trial, the jury convicted the

defendant of theft of property valued at $1,000 or more but less than $10,000 as charged

in counts one and two, theft of property valued at more than $500 but less than $1,000 as

charged in counts three and four, and the lesser included offense of theft of property

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valued at $500 or less in counts five and six. After dismissing the jury, the trial court

merged counts two through six into count one, resulting in a single conviction of theft of

property valued at $1,000 or more than but less than $10,000.2

At sentencing, the parties agreed that the defendant, a career offender,

should be sentenced at the top of the range for his class of offense. The parties did not

agree, however, as to the appropriate class of offense. The trial court observed that on

April 27, 2016, the governor signed into law an amendment to Code section 39-14-105

that modified the then-existing grading structure for theft offenses. Under the new law,

the defendant’s conviction for theft of property would be a Class E felony conviction

rather than a Class D felony conviction because the value of the property established at

trial was more than $1,000 but less than $2,500. See 2016 Pub. Acts, c. 906, § 5. The

court questioned whether the terms of the savings statute included in Code section 39-11-

112 would entitle the defendant to the benefit of the lesser sentence. The defendant

argued that it would. The State agreed that the defendant would be entitled to the lesser

sentence but only after the January 1, 2017 effective date of the amendment. The State

argued that because the defendant was being sentenced before that date, the amendment

had no application in his case. After taking the matter under advisement, the trial court

concluded that the defendant was entitled to the benefit of the new theft grading structure

despite that the act had not yet become effective and imposed a sentence of six years for

the resulting Class E felony theft conviction. The judgment was entered on September

29, 2016.

The State appealed the sentencing decision of the trial court, claiming that

the trial court erred by applying the amended version of Code section 39-14-105 to

determine the conviction class. The defendant also appealed, challenging the sufficiency

of the convicting evidence.

I. Jurisdiction

As in any other appeal before this court, our first concern is whether this

court is authorized to hear the case. The State initiated the appeal in this case by timely

filing a notice of appeal pursuant to Rule 3 of the Tennessee Rules of Appellate

Procedure on October 3, 2016. That rule provides a right of appeal to the State only in

limited circumstances:

In criminal actions an appeal as of right by the [S]tate lies

only from an order or judgment entered by a trial court from

2

“Aggregation of separate thefts is generally permissible where separate larcenous acts are: (1)

from the same owner[s]; (2) from the same location; and (3) pursuant to a continuing criminal impulse or

a single sustained larcenous scheme.” Byrd, 968 S.W.2d at 291 (brackets in original).

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which an appeal lies to the Supreme Court or Court of

Criminal Appeals: (1) the substantive effect of which results

in dismissing an indictment, information, or complaint; (2)

setting aside a verdict of guilty and entering a judgment of

acquittal; (3) arresting judgment; (4) granting or refusing to

revoke probation; or (5) remanding a child to the juvenile

court. The [S]tate may also appeal as of right from a final

judgment in a habeas corpus, extradition, or post-conviction

proceeding.

Tenn. R. App. P. 3(c). “When a statute affords a state or the United States the right to an

appeal in a criminal proceeding, the statute will be strictly construed to apply only to the

circumstances defined in the statute.” State v. Meeks, 262 S.W.3d 710, 718 (Tenn. 2008)

(citing Carroll v. United States, 354 U.S. 394, 400 (1957); State v. Adler, 92 S.W.3d 397,

400 (Tenn. 2002)). As our supreme court explained, at common law the State had no

right to appeal in a criminal case under any circumstances. Meeks, 262 S.W.3d at 718.

Later, many state legislatures and Congress granted to the prosecution limited rights of

appeal via specific constitutional or statutory provisions. See United States v. Sanges,

144 U.S. 310, 312 (1892) (“[T]he [s]tate has no right to sue out a writ of error upon a

judgment in favor of the defendant in a criminal case, except under and in accordance

with express statutes, whether that judgment was rendered upon a verdict of acquittal, or

upon the determination by the court of a question of law.”); see also United States v.

Martin Linen Supply Co., 430 U.S. 564, 568 (1977); United States v. Wilson, 420 U.S.

332, 336 (1975). Even when the right of appeal was granted to the prosecution, courts

continued to emphasize that such provisions must be construed or applied narrowly to

avoid a general grant of jurisdiction for state appeals. Meeks, 262 S.W.3d at 718; see

also Arizona v. Manypenny, 451 U.S. 232, 246 (1981); State v. Reynolds, 5 Tenn. 110,

111 (1817) (“It is our duty as faithful expositors of the law, to preserve it from all

encroachment by implication or construction, for in so doing we guard the honor and the

peace of our countrymen.”). Indeed, “‘appeals by the Government in criminal cases are

something unusual, exceptional, not favored,’ at least in part because they always

threaten to offend the policies behind the double-jeopardy prohibition.” Will v. United

States, 389 U.S. 90, 96 (1967) (quoting Carroll, 354 U.S. at 400. “Both prudential and

constitutional interests contributed to this tradition. The need to restrict appeals by the

prosecutor reflected a prudential concern that individuals should be free from the

harassment and vexation of unbounded litigation by the sovereign.” Manypenny, 451

U.S. at 245. When construing the right of the State to appeal in a criminal case,

reviewing courts must do so with an understanding that the granting authority, the

legislature, “clearly contemplated . . . that [the prosecution] would be completely unable

to secure review of some orders having a substantial effect on its ability to secure

criminal convictions.” Will, 389 U.S. at 98 n.5.

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With these considerations in mind, we turn to the question whether any

portion of the State’s appeal in this case fits any of the bases for rightful appeal

enunciated in Tennessee Rule of Appellate Procedure 3(c).

The trial court’s ruling in this case did not have “the substantive effect of . .

. dismissing an indictment, information, or complaint,” did not set aside the verdict of the

jury, did not arrest the judgment, did not result in the defendant’s being granted

probation, and did not “remand[] a child to the juvenile court.” Additionally, this case

does not arise from “a final judgment in a habeas corpus, extradition, or post-conviction

proceeding.” Because the State’s claim on appeal does not fit any of the categories

provided in Rule 3(c), the State has no stand-alone appeal as of right pursuant to

Tennessee Rule of Appellate Procedure 3.

That being said, Code section 40-35-402 provides the State the right to

appeal certain sentencing decisions of the trial court “within the same time and in the

same manner as other appeals in criminal cases”:

(a) The district attorney general in a criminal case may appeal

from the length, range or manner of the service of the

sentence imposed by the sentencing court. The district

attorney general may also appeal the imposition of concurrent

sentences. In addition, the district attorney general may also

appeal the amount of fines and restitution imposed by the

sentencing court. An appeal pursuant to this section shall be

taken within the same time and in the same manner as other

appeals in criminal cases. The right of the appeal of the state

is independent of the defendant’s right of appeal.

(b) An appeal from a sentence is limited to one (1) or more of

the following conditions:

(1) The court improperly sentenced the defendant to the

wrong sentence range;

(2) The court granted all or part of the sentence on probation;

(3) The court ordered all or part of the sentences to run

concurrently;

(4) The court improperly found the defendant to be an

especially mitigated offender;

(5) The court failed to impose the fines recommended by the

jury;

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(6) The court failed to order the defendant to make reasonable

restitution; or

(7) The sentence is inconsistent with the purposes or

considerations of sentencing set out in §§ 40-35-102 and 40-

35-103.

T.C.A.§ 40-35-402(a)-(b). Construing this statutory grant of State appeal narrowly, as

we are compelled to do, we conclude that Code section 40-35-402 does not provide the

State a right to appeal the trial court’s decision in this case.

The State argues that the trial court’s erroneous application of amended

Code section 39-14-105 caused it to impose a sentence within the wrong sentencing

range, thus giving rise to an appeal as of right under Code section 40-35-402(b)(1). The

State’s reliance on Code section 40-35-402(b)(1), however, is inapt. The amendment to

Code section 39-14-105 altered only the relationship between the value of property taken

during a theft and offense classification, in some situations adjusting the class of offense

at issue. The amendment did not alter the law setting sentencing ranges. Sentencing

range and offense class are not the same. Both offenses, see T.C.A. § 40-35-110, and

offenders, see id. § 40-35-105 to -109, are classified by the legislature, and the Code then

provides a range of punishment for each combination of offense and offender class. See

id. § 40-35-112. “[W]hen interpreting statutes,” this court follows “the Latin maxim of

expressio unius est exclusio alterius, meaning ‘the expression of one thing implies the

exclusion of all things not mentioned.’” Adler, 92 S.W.3d at 400 (quoting Limbaugh v.

Coffee Med. Center, 59 S.W.3d 73, 84 (Tenn. 2001)). The question in this case is not the

appropriate range classification but whether the defendant’s conviction of theft of

property valued at $1,000 or more but less than $10,000 should be classified as a Class D

felony, pursuant to the law in effect at the time of the crime, or a Class E felony, pursuant

to amended Code section 39-14-105. Because Code section 40-35-402 does not provide

the State an appeal as of right of the trial court’s decision regarding offense classification,

the trial court’s resolution of this question, regardless whether it was correct, does not

avail the State of a statutory right to appeal under the terms of Code section 40-35-402.

Consequently, the State has no statutory right to appeal in this case.

This court may, under certain circumstances, treat an improperly-filed

appeal as an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of

Appellate Procedure. See State v. Norris, 47 S.W.3d 457, 463 (Tenn. Crim. App. 2000);

State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998). Rule 10 provides:

An extraordinary appeal may be sought on application and in

the discretion of the appellate court alone of interlocutory

orders of a lower court from which an appeal lies to the

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Supreme Court, Court of Appeals or Court of Criminal

Appeals: (1) if the lower court has so far departed from the

accepted and usual course of judicial proceedings as to

require immediate review, or (2) if necessary for complete

determination of the action on appeal as otherwise provided

in these rules. The appellate court may issue whatever order

is necessary to implement review under this rule.

Tenn. R. App. P. 10(a). Before this court will grant an extraordinary appeal, however,

the appellant must establish that: (a) “the ruling of the court below represents a

fundamental illegality,” (b) “the ruling constitutes a failure to proceed according to the

essential requirements of the law,” (c) “the ruling is tantamount to the denial of either

party of a day in court,” (d) “the action of the trial judge was without legal authority,” (e)

“the action of the trial judge constituted a plain and palpable abuse of discretion,” or (f)

“either party has lost a right or interest that may never be recaptured.” State v.

Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980) (finding that the principles required for

the common law writ of certiorari are applicable to applications for extraordinary appeal

under Rule 10). Application of Rule 10 in this case is inappropriate, however, because

the State appeals from the final judgment of the trial court. The plain language of Rule

10 limits its application to the “interlocutory orders” of the trial court.

Under circumstances similar to those presented here, this court in Leath

considered the State’s improperly-filed Rule 3 appeal as a petition for the common-law

writ of certiorari. “The common-law writ of certiorari is ‘of ancient origin and has been

characterized as extraordinary, remedial, revisory, supervisory, and prerogative.’” State

v. Lane, 254 S.W.3d 349, 354 (Tenn. 2008) (quoting State v. Johnson, 569 S.W.2d 808,

812 (Tenn. 1978); Tenn. Cent. R.R. v. Campbell, 75 S.W. 1012 (Tenn. 1903)). “A writ of

certiorari is an order from a superior court to an inferior tribunal to send up a complete

record for review, so that the reviewing court can ascertain whether the inferior tribunal

has exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily.” Lane, 254

S.W.3d at 354 (citations omitted). An extremely limited avenue of relief, the writ of

certiorari is available “to correct ‘(1) fundamentally illegal rulings; (2) proceedings

inconsistent with essential legal requirements; (3) proceedings that effectively deny a

party his or her day in court; (4) decisions beyond the lower tribunal’s authority; and (5)

plain and palpable abuses of discretion.’” Lane, 254 S.W.3d at 355 (quoting Willis v.

Tenn. Dep’t Corr., 113 S.W.3d 706, 712 (Tenn. 2002)). The writ may also lie “‘[w]here

either party has lost a right or interest that may never be recaptured.’” Lane, 254 S.W.3d

at 355 (quoting Johnson, 569 S.W.2d at 815)). “[R]eviewing courts should not grant a

petition for a common-law writ of certiorari to ‘(1) inquire into the intrinsic correctness

of the lower tribunal’s decision, (2) reweigh the evidence, or (3) substitute their judgment

for that of the lower tribunal.’” Lane, 254 S.W.3d at 355 (quoting Robinson v. Clement,

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65 S.W.3d 632, 635 (Tenn. Ct. App. 2001) (internal citations omitted)).

A statutory provision for review by the writ of certiorari is codified at

Tennessee Code Annotated section 27-8-101:

The writ of certiorari may be granted whenever authorized by

law, and also in all cases where an inferior tribunal, board, or

officer exercising judicial functions has exceeded the

jurisdiction conferred, or is acting illegally, when, in the

judgment of the court, there is no other plain, speedy, or

adequate remedy. This section does not apply to actions

governed by the Tennessee Rules of Appellate Procedure.

T.C.A. § 27-8-101. Although a provision for a writ of certiorari has been codified, our

case law is clear that “[t]he writ of certiorari does not owe its existence to constitutional

provision or statutory enactment. It is a common-law writ, of ancient origin, and one of

the most valuable and efficient remedies which come to us with that admirable system of

jurisprudence.” Campbell, 75 S.W. at 1012; see also State v. L.W., 350 S.W.3d 911, 915

(Tenn. 2011). “The inclusion of a provision in our original constitution for writs of

certiorari, Tenn. Const. art. VI, §§ 6-7 (1796), was to guarantee the availability of the

writ in civil cases, as opposed to the previously exclusive use of the writ in criminal

cases.” L.W., 350 S.W.3d at 915 (citing Campbell, 75 S.W. at 1012–13). Thus, the

procedural requirements for filing a petition for writ of certiorari in a civil case are

inapplicable “on petitions for writs of certiorari in criminal cases.” L.W., 350 S.W.3d at

916.

In this case, the trial court’s ruling is not fundamentally illegal and does not

amount to a “plain and palpable” abuse of the court’s discretion. Additionally, because

the trial court held more than one hearing on the issue at which both parties were allowed

to fully participate, the proceedings were not “inconsistent with essential legal

requirements” and did not deny either party a “day in court,” and neither party “lost a

right or interest that may never be recaptured.” Because the trial court’s application of

amended Code section 39-14-105 to the defendant’s case exceeded the court’s authority,

as will be discussed more fully below, we could treat the State’s improperly-filed appeal

as of right as a petition for the common law writ of certiorari. Nevertheless, we need not

resort to this extraordinary avenue to consider the State’s claim because the defendant

filed a timely notice of appeal in this case on January 13, 2017, following the December

16, 2016 denial of his motion for new trial.

Rule 13 of the Tennessee Rules of Appellate Procedure provides:

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Except as otherwise provided in Rule 3(e), any question of

law may be brought up for review and relief by any party.

Cross-appeals, separate appeals, and separate applications for

permission to appeal are not required. Dismissal of the

original appeal shall not preclude issues raised by another

party from being considered by an appellate court.

Tenn. R. App. P. 13(a). Once the defendant, who possessed a plenary right to appeal any

properly-preserved issue, filed a timely notice of appeal, this court acquired jurisdiction

of the entire case and any properly-preserved, cognizable claims raised by either party.3

See State v. Russell, 800 S.W.2d 169, 171 (Tenn. 1990) (“The filing of an appeal by one

party removes the entire case to the Appellate Court where both parties may present

issues in accordance with the rules.”). Because our determination of the appropriate

version of Code section 39-14-105 to be applied in this case is an issue of statutory

interpretation, it qualifies as a question of law, see State v. Henderson, 531 S.W.3d 687,

692 (Tenn. 2017) (“Issues of statutory construction present questions of law which we

review de novo, with no presumption of correctness.”), and, in consequence, it may be

raised by either party, regardless of which party initiated the appeal.

II. Applicability of Amended Code section 39-14-105

The State contends that the trial court erred by using the terms of Code

section 39-11-112, commonly referred to as the criminal saving’s statute, to determine

that the defendant was entitled to the lesser sentence provided for by the 2016

amendment to Code section 39-14-105 because (1) the amendment had not yet become

effective at the time of the defendant’s sentencing hearing and (2) Code section 39-11-

112 did not apply to the amendment because it was not a sentencing provision. The

defendant asserts that the trial court did not err.

Because our determination of the propriety of the trial court’s ruling

depends upon our interpretation of the amendment to Code section 39-14-105 through the

lens of Code section 39-11-112, our review is de novo with no presumption of

correctness afforded to the ruling of the trial court. See, e.g., State v. Howard, 504

S.W.3d 260, 267 (Tenn. 2016).

The most basic principle of statutory construction is “‘to ascertain and give

effect to the legislative intent without unduly restricting or expanding a statute’s coverage

beyond its intended scope.’” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678

3

As discussed above, under certain circumstances, constitutional principles limit the character of

claims that may be raised by the State on appeal.

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(Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “Legislative

intent is determined ‘from the natural and ordinary meaning of the statutory language

within the context of the entire statute without any forced or subtle construction that

would extend or limit the statute’s meaning.’” Osborn v. Marr, 127 S.W.3d 737, 740

(Tenn. 2004) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). “When the

statutory language is clear and unambiguous, we apply the plain language in its normal

and accepted use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State

v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous

that we may reference the broader statutory scheme, the history of the legislation, or other

sources.” In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn.

Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)).

On April 27, 2016, the governor signed into law a bill designated by the

legislature as the Public Safety Act of 2016 (“the Act”). The Act amends the law for the

issuance of orders of protection; alters the penalty for a third or subsequent conviction of

domestic assault; adds “the results of an offender’s validated risk and needs assessment”

to the list of factors that the trial court must consider during sentencing; adds a new

category of offenses that come with an 85 percent release eligibility percentage; adds a

new section to Title 40, Chapter 28 that creates a graduated system of sanctions for

violating a sentence involving release into the community; and amends Code section 39-

14-105 by modifying the grading of theft offenses. See 2016 Pub. Acts, c. 906. As is

relevant to this case, the Act provides:

Tennessee Code Annotated, Section 39-14-105(a), is

amended by deleting the subsection in its entirety and

substituting instead the following language:

(a) Theft of property or services is:

(1) A Class A misdemeanor if the value of the property or

services obtained is one thousand dollars ($1,000) or less;

(2) A Class E felony if the value of the property or services

obtained is more than one thousand dollars ($1,000) but less

than two thousand five hundred dollars ($2,500);

(3) A Class D felony if the value of the property or services

obtained is two thousand five hundred dollars ($2,500) or

more but less than ten thousand dollars ($10,000);

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(4) A Class C felony if the value of the property or services

obtained is ten thousand dollars ($10,000) or more but less

than sixty thousand dollars ($60,000);

(5) A Class B felony if the value of the property or services

obtained is sixty thousand dollars ($60,000) or more but less

than two hundred fifty thousand dollars ($250,000); and

(6) A Class A felony if the value of the property or services

obtained is two hundred fifty thousand dollars ($250,000) or

more.

2016 Pub. Acts, c. 906, § 5. The Act provides two different effective dates:

For the purpose of promulgating rules, policies, forms, and

procedures and making necessary provisions for the

implementation of this act, this act shall take effect upon

becoming a law, the public welfare requiring it. For all other

purposes, this act shall take effect January 1, 2017, the public

welfare requiring it.

Id., § 17. Because the amendment to Code section 39-14-105 does not affect the

“promulgating [of] rules, policies, forms, and procedures and making necessary

provisions for the implementation of this act,” the January 1, 2017 effective date applies

to the issues raised in the present case.

“Generally, a criminal offender must be sentenced pursuant to the statute in

effect at the time of the offense.” State v. Smith, 893 S.W.2d 908, 919 (Tenn. 1994)

(citing State v. Reed, 689 S.W.2d 190, 196 (Tenn. Crim. App. 1984); 24 C.J.S. Criminal

Law, § 1462 (1989)). Code section 39-11-112, however, provides an exception to this

general rule:

When a penal statute or penal legislative act of the state is

repealed or amended by a subsequent legislative act, the

offense, as defined by the statute or act being repealed or

amended, committed while the statute or act was in full force

and effect shall be prosecuted under the act or statute in effect

at the time of the commission of the offense. Except as

provided under § 40-35-117, in the event the subsequent act

provides for a lesser penalty, any punishment imposed shall

be in accordance with the subsequent act.

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T.C.A. § 39-11-112 (emphasis added). As our supreme court has explained, “the general

provisions of § 39-11-112 and the principles against retroactive application of statutes

mandate that an offense committed under a repealed or amended law shall be prosecuted

under that law, unless the new law provides for a lesser penalty.” State v. Cauthern, 967

S.W.2d 726, 747 (Tenn. 1998) (citing State v. Smith, 893 S.W.2d 908, 919 (Tenn. 1994);

State v. Brimmer, 876 S.W.2d 75, 82 (Tenn. 1994)).

Against this backdrop, we must determine whether the exception embodied

in the criminal saving’s statute, Code section 39-11-112, applies to amended Code

section 39-14-105 and whether, if it does apply, Code section 39-11-112 entitles the

defendant to the lesser sentence provided by the statutory amendment even though the

crime was committed and the defendant was sentenced before the effective date.

The State first argues that the exception in Code section 39-11-112 has no

application in this case because Code section 39-14-105, in any form, is not a sentencing

statute. We disagree. Code section 39-14-105 “provides the punishment for the offenses

of theft. These offenses are punished according to the value of the property or services

obtained.” T.C.A. § 39-14-105, Sentencing Comm’n Comm’t (emphasis added). In

1989, the legislature replaced the common law offenses of “embezzlement, false

pretense, fraudulent conversion, larceny, receiving or concealing stolen property, and

other similar offenses,” id. § 39-14-101, into a “new generic offense of theft,” id. § 39-

14-101, Sentencing Comm’n Comm’t; see also id. § 39-14-101 (“Conduct denominated

as theft in this part constitutes a single offense . . . .”). Code section 39-14-103 provides

the elements of the generic theft offense: “A person commits theft of property if, with

intent to deprive the owner of property, the person knowingly obtains or exercises control

over the property without the owner’s effective consent.” Id. § 39-14-103(a). Property is

defined as “anything of value, including, but not limited to, money, real estate, tangible

or intangible personal property, including anything severed from land, library material,

contract rights, choses-in-action, interests in or claims to wealth, credit, admission or

transportation tickets, captured or domestic animals, food and drink, electric or other

power.” Id. § 39-11-106. In most theft cases,

“Value”:

(A) Subject to the additional criteria of subdivisions

(a)(36)(B)-(D), “value” under this title means:

(i) The fair market value of the property or service at the

time and place of the offense; or

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(ii) If the fair market value of the property cannot be

ascertained, the cost of replacing the property within a

reasonable time after the offense;

....

(C) If property or service has value that cannot be ascertained

by the criteria set forth in subdivisions (a)(36)(A) and (B), the

property or service is deemed to have a value of less than fifty

dollars ($50.00);

Id. § 39-11-106(36)(A),(C). By applying these statutes, we see that so long as the State

establishes that the defendant deprived the owner of “property,” it will necessarily have

established that the defendant took a thing of value and vice versa. “Nothing in [Code

section] § 39-14-103 which defines the offense of theft requires the [S]tate to prove the

specific value of the property taken. Rather, the [S]tate merely has to introduce evidence

from which a jury could conclude that the property has some value.” State v. Hill, 856

S.W.2d 155, 156 (Tenn. Crim. App. 1993) (Baldwin v. State, 33 Tenn. (1 Sneed) 411

(1853)); see also State v. Charles Cox, No. W2010-00129-CCA-R3-CD, slip op. at 5

(Tenn. Crim. App., Jackson, Dec. 13, 2010) (“While the [S]tate did not present evidence

regarding the value of the items, the jury was free to infer that the items had some value,

which is sufficient to sustain the misdemeanor theft of property conviction.”).

When the State establishes a specific value of property taken, Code section

39-14-105 supplies a penalty to be imposed that is commensurate with the value as

established by the evidence. When the State fails, or elects not, to present proof of

specific value, the Code provides a default value of less than $50. Consequently, the

specific value of the property taken is not an element of the generic theft offense.4

Because Code section 39-14-105 provides the penalty for theft based upon

the value of the property taken, any amendment to that statute that lessens the penalty

falls squarely within the “exception” to Code section 39-11-112. The amendment at issue

in this case does exactly that. As is applicable in this case, the amendment provides that

4

We also observe that the gravamen of the Public Safety Act of 2016 is the amendment of various

sentencing provisions and that the legislature identifies the subject of HB2576, which became the Public

Safety Act of 2016, as “sentencing.” See Tennessee House Journal, 2016 Reg. Sess. No. 33 (“*House

Bill No. 2576 -- Sentencing - As introduced, enacts the ‘Public Safety Act of 2016.’ - Amends TCA Title

36, Chapter 3, Part 6; Title 39, Chapter 13, Part 1; Title 39, Chapter 14, Part 1; Title 40, Chapter 28; Title

40, Chapter 35 and Title 41, Chapter 1, Part 4. by *McCormick, *Brooks K, * Lamberth.”).

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the theft of property valued at just over $1,000, the value as alleged by the State, became

a Class E felony rather than a Class D felony. Clearly, the new act provides for a lesser

penalty than the previous act.

Having determined that Code section 39-11-112 is generally applicable to

amended Code section 39-14-105, we must next determine whether the Act can be

applied in the defendant’s case even though he was sentenced before the effective date of

the Act. The State argues that it cannot. The defendant, of course, contends that it can.

We agree with the State.

Our State constitution provides that “[n]o law of a general nature shall take

effect until forty days after its passage unless the same or the caption thereof shall state

that the public welfare requires that it should take effect sooner.” Tenn. Const. art. II, §

20. The law is clear, however, “that the Legislature may, by the terms of the act itself,

postpone its taking effect to a period beyond the 40 days even.” Wright v. Cunningham,

91 S.W. 293, 295 (Tenn. 1905) (citing State ex rel. v. Trewhitt, 82 S.W. 480, 483 (Tenn.

1904)). As our supreme court explained in Trewhitt, the purpose behind the 40-day

provision in article II, section 20 “was to secure a sufficient interval between the date of

the passage of an act and its going into effect, to enable the public to become acquainted

with its terms and to conform thereto with the saving that, if the public should require it,

the Legislature, by special direction to that effect, might cause it to become operative at

once.” Trewhitt, 82 S.W. at 483; Cf. Dyer v. State, 19 Tenn. 237, 255-56 (1838)

(observing that the requirement that “[s]tatutes take effect upon the most remote and

secluded portions of the State, from the time of their passage, not allowing a single

moment for gaining intelligence of their passage” was “a principle of law destitute of

every semblance of reason, and fraught with hardship and severity.”). Given this

purpose, the high court observed that “[t]here is nothing in the provision referred to, or in

any other provision of the Constitution, to forbid the Legislature making even a longer

interval than the one that was specially designated as a safeguard.” Trewhitt, 82 S.W. at

483.

In Wright v. Cunningham, our supreme court explained the effect of the

legislature’s including a delayed effective date:

In such cases the instrument has, by the authority of the

Legislature, become an expression of the legislative will in

the form of a rule of action prescribed for the regulation of

the conduct and affairs of the people; but it is a part of the

same expression that the people shall not be compelled or

permitted to act thereunder until the expiration of a time

fixed. It is tantamount to saying that on and after so many

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days from the passage of this act the rule of action shall be

thus and thus. The statute is vitalized immediately upon full

compliance by the Legislature with the requirements of the

Constitution for the enacting of laws. This is one thing. The

time when it shall be the duty of the people to comply with its

provisions is another; the latter depending upon the terms of

the act itself.

Wright, 91 S.W. at 295 (emphasis added); see also Key v. State, 591 S.W.2d 793, 795

(Tenn. Crim. App. 1979) (observing that “there is nothing in the Constitution to forbid

the Legislature postponing the operation of an Act for an extended interval beyond the

date of its passage”). In addition to a general postponing of the effective date, the

legislature may, as it did in the case of the Public Safety Act of 2016, “provide that part

or parts of an Act take effect before the remainder of the Act.” State ex rel. Banks v.

Taylor, 287 S.W.2d 83, 86 (Tenn. 1955); Am. Network Grp., Inc. v. Kostyk, 804 S.W.2d

447, 450 (Tenn. Ct. App. 1990) (“The delayed effective date is not an expression of

intent that any part of the act should take effect prior to its expressly stated effective

date.”).

Citing Combustion Engineering, Inc. v. Jackson, and Diana Morris v. State,

the defendant insists that “[a] legislative act of ‘amendment’ is distinct from a statutory

‘effective’ date.” In our view, neither case supports the defendant’s position. In

Combustion, “the single issue presented [was] the proper rate of interest payable upon a

deficiency assessment of excise taxes,” which required the court of appeals to interpret

the various amendments to Code section 67-1-801(a)(2). Combustion Eng’g, Inc. v.

Jackson, 705 S.W.2d 655, 655 (Tenn. 1986). In Diana Morris, an unpublished case from

the court of appeals, the court discussed the impact of an effective date that predates the

passage of an act:

The General Assembly may determine an Act’s effective

date. However, an effective date provision stating that an Act

becomes effective before it is actually passed is a nullity. A

bill is not deemed enacted until all the actions required by

Tenn. Const. art. II, § 18 have occurred. The 1999

amendment provided that it would apply to “all cases filed

with the . . . Commission on or after July 1, 1992, pending or

on appeal at the time of passage of this act . . . .” The General

Assembly completed action on the bill on March 22, 1999,

but the bill could not take effect until April 7, 1999, when the

Governor signed it. Accordingly, we construe the 1999

amendment to apply to cases pending or on appeal when the

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amendment became effective.

Diana Morris v. State, No. M1999-02714-COA-RM-CV, slip op. at 5 n.10 (Tenn. Ct.

App., Nashville, Oct. 8, 2002). Nothing in either case suggests that any act of the

legislature can have any effect before its effective date.

In this case, the Public Safety Act of 2016 was passed by both houses of the

legislature and signed into law by the governor on April 27, 2016. See 2016 Pub. Acts

906. At that point, having fully complied “with the requirements of the Constitution for

the enacting of laws,” the act was “vitalized.” Wright, 91 S.W. at 295. Because, as is

relevant in this case, the Act specified an effective date of January 1, 2017, “the people”

could “not be compelled or permitted to act thereunder until” that date based upon “the

terms of the act itself.” Id. Nothing in the language of Code section 39-11-112 alters the

rule that an act of the legislature cannot be applied until the effective date, which is

anchored in the state constitution. In consequence, the trial court exceeded its authority

by applying amended Code section 39-14-105 before its effective date.

We pause here to emphasize that, although we have rejected what we

discern as an over-extension of Code section 39-11-112, the statute remains naturally

efficacious and viable within its proper realm. To understand the statute’s limited

availability, one must understand first that the fundamental date for defining and

sanctioning criminal activity is the date of the offense. The date of the offense typically

informs the application of the proper proscriptive and punishment statutes. Because this

is true, not even the date of sentencing supplants the date of the offense as the controlling

date for purposes of criminal sanctioning – but for exception in Code section 39-11-112,

the criminal saving’s statute. Seen in this light, it is clear that the saving’s statute

becomes remedial only when the sentencing occurs after the effective date of any

statutory change. In the present case, the conviction offense was committed before the

effective date of the amendment to Code section 39-14-105 (and, in actuality, before the

governor signed the amendment into law), and the sentencing occurred before the

effective date of the statute. Thus, not even the date of the sentencing supplanted the date

of the offenses as the controlling date in this case.

Therefore, we vacate the sentence. Because the parties agreed that the

defendant was a career offender, a remand for resentencing is not necessary. The

judgment is modified to reflect a Class D felony conviction of theft of property valued at

$1,000 or more but less than $10,000 and a sentence of 12 years. See T.C.A. § 40-35-

108(c) (“A defendant who is found by the court beyond a reasonable doubt to be a career

offender shall receive the maximum sentence within the applicable Range III.”); id. § 40-

35-112(c)(4) (“A Range III sentence is . . . [f]or a Class D felony, not less than eight (8)

nor more than twelve (12) years[.]”).

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III. Sufficiency

The defendant challenges the sufficiency of the convicting evidence,

claiming that the State failed to establish that the value of the property taken exceeded

$1,000. Specifically, the defendant asserts that Mr. McCarter failed to give specific

testimony regarding the items taken during the September 10 incident before concluding

in a general manner that the value of the items exceeded $500 and that Mr. Schoenrock

erroneously included a value of $100 for the two spiderwraps to reach the $500

threshhold in relation to the September 15 incident despite testifying that that was neither

the fair market value nor the replacement cost for those items. The State asserts that the

evidence was sufficient.

As is relevant in this case, value means either “[t]he fair market value of the

property or service at the time and place of the offense” or “[i]f the fair market value of

the property cannot be ascertained, the cost of replacing the property within a reasonable

time after the offense.” T.C.A. § 39-11-106(a)(36)(A)(i)-(ii). Mr. Schoenrock, who

provided the value of the items taken from the Walmart on September 15, candidly

admitted that he did not know whether the $100 value he assigned to the spiderwraps was

either the fair market value or the replacement cost for those items. He acknowledged

that he did not know the replacement cost because it was not his job to order them and

that Walmart did not offer the spiderwraps for sale such that their fair market value could

be ascertained by checking the price in the store. That being said, the defendant was

convicted of the lesser included offense of theft of property valued at $500 or less in

those counts, and the “training receipt” created by scanning the items in the defendant’s

shopping cart supported that conviction even without the $100 attributed to the security

devices. Mr. McCarter identified the items taken by the defendant from the Walmart on

September 10 as Bostitch tool sets, two of which were priced at $189.99 and six of which

were priced at $89.99. Although Mr. McCarter did not prepare a “training receipt” and

his testimony was, at times, less than specific, the aggregate total of the items he

identified in the defendant’s shopping cart exceeded $900. Thus, the evidence adduced at

trial was sufficient to support a conviction of theft of property valued at more than $500

in counts three and four. Additionally, the evidence sufficiently established that the

aggregate value of the items taken during the two incidents was $1,000 or more but less

than $10,000 as alleged in counts one and two.

Conclusion

The evidence was sufficient to support the defendant’s convictions in this

case. Because the trial court erred by applying the amended version of Code section 39-

14-105 prior to the amendment’s effective date, we vacate the six-year sentence imposed

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by the trial court and remand the case for the entry of a modified judgment reflecting a

12-year sentence for a Class D felony conviction of theft of property valued at $1,000 or

more but less than $10,000.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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