The opinion
12/04/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 15, 2018 Session
JOHN N. MOFFITT v. STATE OF TENNESSEE
Appeal from the Circuit Court for Henderson County
No. 13-123-1 Roy B. Morgan, Jr., Judge
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No. W2018-01108-COA-R3-CV
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Appellant appeals the trial court’s denial of his petition for restoration of citizenship
rights under Tennessee Code Annotated section 40-29-105. Appellant contends that the
trial court’s decision violates ex post facto protections by imposing a harsher sentence
than that available at the time of his conviction. Discerning no error, we affirm and
remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN
and BRANDON O. GIBSON, JJ., joined.
John N. Moffitt, Lexington, Tennessee, appellant, pro se.
Herbert H. Slatery, III, Attorney General and Reporter, Andrée Sophia Blumstein,
Solicitor General, and Rob Mitchell, Assistant Attorney General, for the appellee, State
of Tennessee
OPINION
I. Background
The relevant facts are not in dispute. On or about September 6, 1989, Appellant
John N. Moffitt was found guilty of first-degree murder. The murder occurred on
November 21, 1988. On post-conviction review, the judgment was reversed and a new
trial ordered. Moffitt v. State, 29 S.W.3d 51 (Tenn. Crim. App. 1999). On remand,
Appellant pled guilty to Second Degree Murder on October 13, 2000, and received a
sentence of 10 years. State v. Moffitt, No. W2001-00781-CCA-R3-CD, 2002 WL
818247 (Tenn. Crim. App. April 19, 2002), perm. app. denied (Tenn. Oct. 21, 2002). On
October 19, 2000, the trial court entered Judgment declaring Mr. Moffitt “infamous” and
releasing him “on time served.” In July 2014, Appellant was convicted of reckless
aggravated assault, for which he received a sentence of 4 years.
After serving his sentence for the aggravated assault conviction, on March 29,
2018, Appellant filed a petition for restoration of his citizenship rights. Appellant filed
an amended petition on April 10, 2018, asserting that “the prior conviction for second
degree murder was fully served.” The State opposed the motion arguing that Appellant
“had been rendered infamous by both the murder conviction and the aggravated assault
conviction.” The State further averred that Appellant had been convicted of DUI and
Reckless Driving on several occasions, that he had violated orders of protection, and that
he “had only been off probation or parole for a matter of weeks” prior to filing his
petition. The trial court denied Appellant’s petition by order of May 29, 2018. The trial
court specifically held that Appellant was ineligible to have his citizenship rights
restored, under Tennessee Code Annotated section 40-29-105(c)(2)(B), as a result of his
murder conviction.
II. Issue
The sole issue for review is whether the trial court’s order denying Appellant’s
petition for restoration of citizenship rights violates ex post facto protections.
III. Standard of Review
We first note that while we are cognizant of the fact that Appellant represented
himself throughout these proceedings, it is well-settled that “pro se litigants are held to
the same procedural and substantive standards to which lawyers must adhere.” Brown v.
Christian Bros. Univ., No. W2012-01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn.
Ct. App. Aug. 5, 2013), perm. app. denied (Tenn. Jan. 15, 2014). This Court has held
that “[p]arties who choose to represent themselves are entitled to fair and equal treatment
by the courts.” Hodges v. Tenn. Att’y Gen., 43 S.W.3d 918, 920 (Tenn. Ct. App. 2000);
Paehler v. Union Planters Nat’l Bank, Inc., 971 S.W.2d 393, 396 (Tenn. Ct. App.
1997). Nevertheless, “courts must not excuse pro se litigants from complying with the
same substantive and procedural rules that represented parties are expected to observe.”
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003); Edmundson v. Pratt,
945 S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n.4
(Tenn. Ct. App. 1995).
Turning to the standard of review, because this case was tried by the court sitting
without a jury, we review the trial court’s findings of fact de novo with a presumption of
correctness, unless the evidence preponderates against those findings. McGarity v.
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Jerrolds, 429 S.W.3d 562, 566 (Tenn. Ct. App. 2013); Wood v. Starko, 197 S.W.3d 255,
257 (Tenn. Ct. App. 2006). For the evidence to preponderate against a trial court’s
finding of fact, the weight of the evidence must “demonstrate . . . that a finding of fact
other than the one found by the trial court is more probably true.” Williams v. City of
Burns, 465 S.W.3d 96, 108 (Tenn. 2015); The Realty Shop, Inc. v. R.R. Westminster
Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999). This Court conducts a de novo
review of the trial court’s resolution of questions of law, with no presumption of
correctness. Kelly v. Kelly, 445 S.W.3d 685, 691-92 (Tenn. 2014); Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).
To the extent the issue presented requires interpretation of Tennessee Code
Annotated section 40-29-105, we are guided by the familiar rules of statutory
construction. “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.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (citing
State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993)). “The text of the statute is of primary
importance.” Mills v. Fulmarque, 360 S.W.3d 362, 368 (Tenn. 2012). A statute should
be read naturally and reasonably, with the presumption that the legislature says what it
means and means what it says. See BellSouth Telecomm'ns., Inc. v. Greer, 972 S.W.2d
663, 673 (Tenn. Ct. App. 1997).
IV. Analysis
This Court recently discussed deprivation of citizenship rights as follows:
As an initial matter, the Tennessee Constitution provides that “[l]aws may
be passed excluding from the right of suffrage persons who may be
convicted of infamous crimes.” Tenn. Const., art. IV, § 21. To that end,
the Tennessee General Assembly enacted Tennessee Code Annotated
section 40-20-112, which states: “Upon conviction for any felony, it shall
be the judgment of the court that the defendant be infamous and be
immediately disqualified from exercising the right of suffrage.” See also
Tenn. Code Ann. § 2-19-143 (providing that those convicted of infamous
crimes in this state or under federal law shall not be permitted to vote
unless such person has been pardoned by the appropriate authority or “the
person’s full rights of citizenship have otherwise been restored”),
recognized as unconstitutional when applied retroactively by May v.
Carlton, 245 S.W.3d 340, 345 (Tenn. 2008) (citing Gaskin v. Collins, 661
S.W.2d 865, 867 (Tenn. 1983) (holding that statute expanding the
definition of infamous crimes for which felons are disenfranchised and
applying that definition to disenfranchise felons regardless of when they
were convicted violated constitutional provision prohibiting retroactive
disenfranchisement under Tennessee constitutional provisions related to
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suffrage)). The Tennessee Constitution further provides, however, that “the
right of suffrage, as hereinafter declared, shall never be denied to any
person entitled thereto, except upon conviction by a jury of some infamous
crime, previously ascertained and declared by law, and judgment thereon
by court of competent jurisdiction.” Tenn. Const., art. I, § 5. As such,
those rendered infamous by the conviction of a crime are not permitted to
vote following a judgment to that effect unless and until a pardon occurs or
voting rights are restored.
State v. Dixon, No. W2017-01051-COA-R3-CV, 2018 WL 1168693, *2 (Tenn. Ct. App.
March 3, 2018).
Tennessee Code Annotated section 40-29-105 provides for the restoration of
citizenship rights following conviction for infamous crimes. As is relevant to the instant
appeal, the statute provides:
(b) For all persons convicted of infamous crimes after July 1, 1986, but
before July 1, 1996, the following procedures shall apply:
(1) A person rendered infamous or deprived of the rights of citizenship by
the judgment of any state or federal court may have full rights of
citizenship restored upon:
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(B) Service or expiration of the maximum sentence imposed for the
infamous crime; or
(C) Being granted final release from incarceration or supervision by the
board of parole, or county correction authority;
(2) A person rendered infamous after July 1, 1986, by virtue of being
convicted of one (1) of the following crimes shall never be eligible to
register and vote in this state:
(A) First degree murder;
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(c) The following procedure shall apply to a person rendered infamous by
virtue of being convicted of a felony on or after July 1, 1996:
(2) . . .
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(B) A person convicted of an infamous crime may petition for restoration
upon the expiration of the maximum sentence imposed by the court for the
infamous crime; provided, that a person convicted of murder, rape, treason
or voter fraud shall never be eligible to register and vote in this state;
Here, the trial court denied Mr. Moffitt restoration of his citizenship rights by
order of May 29, 2018. The trial court’s order states, in relevant part:
Johnny Moffitt has a prior conviction for second degree murder and. . .
T.C.A. § 40-29-105 (c)(2)(b) provides:
A person convicted of an infamous crime may petition for
restoration upon the expiration of the maximum sentence
imposed by the court for the infamous crime; provided, that a
person convicted of murder, rape, treason or voter fraud shall
never be eligible to register and vote in this state
The Court finds that as a matter of statutory interpretation that the
legislature intended to exclude all convictions for murder by using the
broader term murder and not limiting the term to first degree murder as the
legislature did in T.C.A. § 40-29-105(b)(2).
In this case the petitioner, Johnny Moffitt was originally convicted
of first degree murder the procedural history of Johnny Moffitt’s case is set
forth in Moffitt v. State, 29 S.W.3d 51 stating:
This appeal presents the post-conviction claim of ineffective
assistance of counsel. In 1989, a Henderson County jury
found the appellant, Johnny Moffitt, guilty of first degree
murder and shooting into a dwelling. His convictions and
sentences were affirmed by this court on direct appeal. In
1993, the appellant filed the instant post-conviction petition
alleging that the failure of the trial court to instruct on the
defense of alibi constituted a denial of federal and state due
process and was the result of ineffective assistance of
counsel. The post-conviction court denied relief. On appeal, a
panel of this court found trial counsel’s performance deficient
and remanded to the post-conviction court for a determination
of prejudice. On remand, the post-conviction court found no
prejudice. This appeal presents the limited issue of whether
the appellant was prejudiced by trial counsel's deficient
performance. After review, we find prejudice. The appellant's
convictions and sentences are reversed and vacated and this
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case is remanded to the trial court for a new trial.
Upon remand the petitioner entered a guilty plea on October l3th,
2000 reserving a certified question of law which was taken up[] by the
Court of Criminal Appeals in State v. Moffitt, 2002 Tenn. Crim. App.
LEXIS 362 wherein the Court stated:
The defendant, Johnny Moffitt, entered a plea of guilty to
second degree murder. The trial court imposed a Range I
sentence of 10 years. By agreement, the defendant reserved a
certified question of law. See Tenn. R. Crim. P. 37. The
issue presented in this appeal is whether the trial court should
have dismissed the charge due to the loss or destruction of
evidence. The judgment is affirmed.
Because the defendant was convicted on October 13th, 2000 and the
judgment entered October 19th, 2000 the provisions of T.C.A. § 40-29-
105([c])[(2)](B) apply to the petitioner.
Because the petitioner has been convicted of murder after July lst,
1996, he is not eligible for restoration of citizenship.
As set out in context above, Tennessee Code Annotated section 40-29-
105(c)(2)(B) provides that “a person convicted of murder . . . shall never be eligible to
register and vote in this state.” Mr. Moffitt contends that the trial court erred in applying
section 40-29-105(c)(2)(B). He contends that the applicable statutory provision is section
40-29-105(b)(2), which denies eligibility for restoration of citizenship rights where the
petitioner has been convicted of “first degree murder,” as opposed to the broader term,
“murder,” i.e., any murder, used in 40-29-105(b)(2)(A). Mr. Moffitt argues that
subsection (c) is inapplicable because “the sentencing [on the second-degree murder
conviction] took effect [o]n September 6, 1989,” and “T.C.A. Code 40-29-105 clearly
states that a[n infamous] crime committed between July 2, 1986 and July 1, 1996 would
be governed by that [section, i.e., subsection (b)], and the [infamous] crime would be
First Degree Murder . . . and did not include a conviction for Second Degree Murder. . .”
At oral argument before this Court, Mr. Moffitt intimated that, as part of his plea
agreement for Second Degree Murder, the District Attorney agreed that the effective date
of the Second Degree Murder conviction would be September 6, 1989 (the date of Mr.
Moffitt’s conviction for First Degree Murder). Thus, Mr. Moffitt contends that, by virtue
of such agreement, he is entitled to restoration of his citizenship rights, under Tennessee
Code Annotated section 49-29-105(b)(2), by application of the September 6, 1989 date.
We have reviewed the record and the judgment entered on the Second Degree Murder
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plea, and we find no reference to any agreement mandating the use of September 6, 1989
as the applicable date. As noted above, the only notation on the judgment is that Mr.
Moffitt is released “on time served.” A trial court speaks through its orders. Palmer v.
Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1997). Here, the trial court’s order is
silent concerning any agreement regarding the effective date of the Second Degree
Murder Conviction.
In the absence of any alternative agreement, insofar as Mr. Moffitt argues that
section 40-29-105(b)(2) is applicable based on his 1989 conviction for First Degree
Murder, that conviction was “reversed and vacated” by the appellate court in State v.
Moffitt, 2002 WL 818247. This ruling rendered the 1989 conviction null and void. In
other words, the 1989 conviction is of no effect. As such, the only conviction date is
October 13, 2000, the date that judgment was entered on Mr. Moffitt’s Second Degree
Murder conviction. Section 40-29-105(c) clearly applies to “a person rendered infamous
by virtue of being convicted of a felony on or after July 1, 1996” (emphasis added).1
We now turn to Mr. Moffitt’s argument that the trial court’s application of section
40-29-105(c)(2)(B) “inflicted a greater punishment [on Mr. Moffitt] than the law annexed
to the crime when committed,” thus violating ex post factor protections. This Court
recently discussed ex post facto law in Nunn v. Tennessee Dep’t of Correction, 547
S.W.3d 163, 202 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. March 15, 2018):
The Tennessee Supreme Court has held that “the ex post facto clause of the
Tennessee Constitution has the same definition and scope as the federal ex
post facto clause.” State v. Pruitt, 510 S.W.3d 398, 402 (Tenn. 2016). The
United States Constitution provides that no state shall pass any ex post
facto law. U.S. Const. art. I, § 10, cl. 1. The Tennessee Constitution
provides that “laws made for the punishment of acts committed previous to
the existence of such laws, and by them only declared criminal, are contrary
to the principles of a free Government; wherefore no Ex post facto law shall
be made.” Tenn. Const. art. I, § 11. “The animating principle of the
prohibition against ex post facto laws is basic fairness[.]” Pruitt, 510
S.W.3d at 410. Four categories of laws are included in the constitutional
prohibition against ex post facto laws:
1st. Every law that makes an action, done before the passing
of the law, and which was innocent when done, criminal; and
1
From his appellate brief, it appears that Mr. Moffitt may also argue for application of section
40-29-105(b)(2) based on the 1988 commission of his offense. We note that neither section 40-29-
105(c)(2)(B) nor section 40-29-105(b)(2) focus on the date the offense was “committed.” Rather, as set
out in context above, the plain language of both sections focuses on the date of the petitioner’s
“conviction.” Owens, 908 S.W.2d at 926; Mills, 360 S.W.3d at 368; BellSouth, 972 S.W.2d at 673. As
such, Mr. Moffitt may not rely on the commission date of his crime, i.e., 1988, as the applicable date.
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punishes such action. 2nd. Every law that aggravates a crime,
or makes it greater than it was, when committed. 3rd. Every
law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than the
law required at the time of the commission of the offence, in
order to convict the offender.
Id. at 411 (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648
(1798)). In order to come within the prohibition of the ex post facto clause,
a law must be retrospective (applying to events occurring before its
enactment) and it must disadvantage the offender (by altering the definition
of criminal conduct or increasing the punishment for the crime). Id. at 416-
17.
In Nunn, this Court rejected appellant Mr. Nunn’s “contention that the Sex
Offender Directives inflicted greater punishment than the law allowed when the crimes
were committed.” Nunn, 547 S.W.3d at 204. Mr. Nunn specifically argued that “an ex
post facto violation exists because he can now be prosecuted for a criminal offense if he
accesses the internet or possesses alcohol, when the conditions of supervision for regular
parolees when he committed his offenses did not prohibit these same acts” Id. at 205.
We held that the facts asserted by Mr. Nunn did not implicate the ex post facto clause.
Id. In so holding, we reiterated:
Again, the Tennessee Constitution provides that “laws made for the
punishment of acts committed previous to the existence of such laws, and
by them only declared criminal, are contrary to the principles of a free
Government; wherefore no Ex post facto law shall be made.” Tenn. Const.
art. I, § 11 (emphasis added). The ex post facto clause would prohibit a
“law that makes an action, done before the passing of the law, and which
was innocent when done, criminal,” [State v.] Pruitt, 510 S.W.3d [398,] at
411 [(Tenn. 2016)], but that is not the situation before us. The Sex
Offender Directives and Tennessee Code Annotated section 39-13-526 do
not make any action criminal that was innocently taken by Nunn before the
passing of the law.
Id. The same is true in the instant case. Unlike Tennessee Code Annotated section 40-
20-112, which removes the right of suffrage, Tennessee Code Annotated section 40-29-
105 does not impose any punishment. Rather, section 40-29-105 merely sets out the
various procedures for pursuing restoration of one’s citizenship rights after he or she has
been punished (under section 40-20-112) by removal of same. As such, the trial court’s
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application of the statute cannot form the basis for an ex post facto violation based on the
imposition of a harsher punishment than originally applicable.
V. Conclusion
For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Cost of the appeal are assessed to the Appellant, John N. Moffitt. Because Mr. Moffitt is
proceeding in forma pauperis in this appeal, execution for costs may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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