Opinion

State of Tennessee v. Marvin Maurice DeBerry

Court: Court of Criminal Appeals of Tennessee
Filed: Apr 21, 2021
Status: Published
On the bench: Presiding Judge John Everett Williams
Cited by: 0 cases
Authority: More cited than 15.3%

noting that, while an ambiguity cannot be manufactured by a nonsensical interpretation, two reasonable interpretations of a statute demonstrate an ambiguity

How later courts described this case

noting that, while an ambiguity cannot be manufactured by a nonsensical interpretation, two reasonable interpretations of a statute demonstrate an ambiguity
noting that Rule 36.1 differs from habeas corpus in part -4- by permitting the State to challenge an illegal sentence and that Tennessee Rule of Appellate Procedure 3 provides an appeal as of right from a trial court’s decision on a Rule 36.1 motion

Written by the judges who cited it.

The opinion

04/21/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 7, 2020 Session

STATE OF TENNESSEE v. MARVIN MAURICE DEBERRY

Appeal from the Circuit Court for Madison County

No. 19-177 Roy B. Morgan, Jr., Judge

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No. W2019-01666-CCA-R3-CD

___________________________________

A jury convicted the Defendant, Marvin Maurice DeBerry, of driving after having been

declared a motor vehicle habitual offender (“MVHO”) and of three misdemeanor

offenses not presented for appellate review. After his conviction but prior to his

sentencing, an amendment to the statute that was the basis of his MVHO conviction went

into effect, so that the Defendant’s conduct was no longer criminalized and,

concomitantly, triggered no penalty. The trial court, after initially sentencing the

Defendant to serve five years, modified the Defendant’s judgment to reflect that he was

to be subjected to no penalty. On appeal, we are called to determine whether the

Defendant may benefit from the savings statute in Tennessee Code Annotated section 39-

11-112. We hold that the savings statute applies because Legislature’s act of removing

punishment for the offense constitutes a lesser penalty. Accordingly, we affirm the trial

court’s judgment reducing the Defendant’s sentence.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and J. ROSS DYER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant

Attorney General; Jody Pickens, District Attorney General; and April Knight and Eric

Wood, Assistant District Attorneys General, for the appellant, State of Tennessee.

George Morton Googe, District Public Defender; Brennan M. Wingerter (on appeal),

Assistant Public Defender – Appellate Division; and Jeremy B. Epperson (at trial),

Assistant Public Defender, for the appellee, Marvin Maurice DeBerry.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant, who had a long history of motor vehicle offenses, was stopped for

a malfunctioning brake light at 12:50 p.m. on May 29, 2018. While the trial transcript is

not part of the record, the affidavit of complaint alleged that the Defendant was unable to

provide proof of financial responsibility, was driving on a revoked license, had been

declared an MVHO at the time, and also had a warrant for a violation of probation. The

Defendant was indicted for driving after being declared an MVHO as of June 29, 2015;

driving on canceled, suspended, or revoked license; violation of the financial

responsibility law; and violation of the light law. On May 15, 2019, a jury found the

Defendant guilty of all four offenses charged and imposed fines of $1,500 for the MVHO

offense, $250 for driving on a revoked license, and $100 for violation of the financial

responsibility law.

Meanwhile, on May 24, 2019, the Legislature approved a law removing the

statutory provisions related to the MVHO offense and replacing them with a means to

reinstate a license previously revoked pursuant to the MVHO statute. 2019 Tenn. Pub.

Acts, ch. 486, § 3. The relevant portion of the change deleted the entirety of Tennessee

Code Annotated, Title 55, Chapter 10, Part 6. Id. The Legislature substituted instead the

following provision:

A person whose driver license has been revoked or restricted due solely to

the person’s status as a motor vehicle habitual offender prior to July 1,

2019, may petition the court that originally made such a finding to reinstate

the person’s driver license. Upon receiving a petition for a reinstated driver

license, the court shall determine whether the person’s driver license was

subject to revocation or restriction under prior law due solely to the

person’s status as a motor vehicle habitual offender and, if so, order the

reinstatement of the person’s driver license. The person may provide a

copy of the court’s order to the department of safety, which shall then

reissue the person’s driver license without restriction.

T.C.A. § 55-10-601 (Supp. 2019).

The trial court held a sentencing hearing on July 8, 2019, during which the

Defendant testified, apparently consistently with his trial testimony, that he had been

driving to work in order to provide for his family when he was stopped for the

malfunctioning brake light. Defense counsel noted that since trial, the MVHO statute had

been repealed and no longer provided for any penalty for driving after having been

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declared an MVHO. Defense counsel argued that the savings statute in Tennessee Code

Annotated section 39-11-112 should operate to reduce the Defendant’s punishment and

leave him with no penalty of incarceration, probation, or fine. The prosecutor argued that

because the statute did not take effect until July 1, 2019, it had no bearing on the

Defendant’s case. The parties disagreed regarding whether the Defendant was required

to be put into the Community Corrections program rather than probation, and the trial

court concluded that it would order Community Corrections “[t]o be safe.” After

considering various enhancement and mitigating factors, and in particular putting weight

on the Defendant’s prior criminal record, which the court found included forty to forty-

five misdemeanor and six felony offenses, the trial court sentenced the Defendant to five

years as a Range III offender for the MVHO offense, with eleven months and twenty-

nine days to be served in the jail and the remainder on Community Corrections. The

Defendant received a sentence of six months for driving on a revoked license and was

ordered to pay the jury-imposed fines for all offenses.

After the judgments were filed, the Defendant filed a “Motion for New Trial,

Verdict of Acquittal, or Modification of Sentence,” in which he again raised the argument

that the savings statute would apply to his sentence and that he should accordingly benefit

from the Legislature’s decision to assign no penalty to the offense. The trial court held a

hearing, and the Defendant argued that “no penalty is a lesser penalty,” while the State

argued that the Legislature’s decision not to modify the penalty precluded the application

of the savings statute to the punishment. The trial court observed that there had been a

“substantial change in the legislature’s attitude in looking at these things and hopefully

keeping sober or drug-free people driving that need a license to work.” The trial court

determined that it would apply the savings statute, reasoning that the amendment to the

MVHO statute, by providing for no penalty, provided for a lesser penalty. On the same

basis, the trial court ordered the fine to be vacated.

The trial court also entered an “Order Granting Motion for Modification of

Sentence” in which it elaborated on the basis of its amendment of the judgments. The

court noted that the statute making it an offense to drive after having been declared an

MVHO was repealed about two weeks after the Defendant’s trial and prior to sentencing.

Finding that “no penalty is a lesser penalty” under the savings statute, Tennessee Code

Annotated section 39-11-112, the trial court ordered that the sentence and fine for the

MVHO offense be vacated. The State appeals, arguing that the trial court erred in

applying the savings statute to the Defendant’s MVHO sentence.

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ANALYSIS

I. Jurisdiction

The Defendant challenges the jurisdictional basis of the appeal. Jurisdiction is a

question of law which we determine de novo. State v. L.W., 350 S.W.3d 911, 915 (Tenn.

2011). The Defendant asserts that because the State’s argument comprehends the

assertion that the Defendant’s sentence is illegal, the State was required to file a motion

under Tennessee Rule of Criminal Procedure 36.1 and then appeal from any denial of the

motion under Tennessee Rule of Appellate Procedure 3(c). The Defendant next asserts

that that the trial court’s modification of the sentence is not appealable under Tennessee

Rule of Criminal Procedure 35 and that the State has no appeal as of right under

Tennessee Code Annotated section 40-35-402(b)(1) because the sentence was not in the

“wrong sentence range.” The Defendant acknowledges that the trial court’s reduction of

the jury-imposed fine is appealable under Tennessee Code Annotated section 40-35-

402(b)(5). The State responds that the sentence is properly appealable under both

Tennessee Rule of Criminal Procedure 35 and Tennessee Code Annotated section 40-35-

402(b)(1). We conclude that this court has jurisdiction to determine the issues raised on

appeal.

We begin by observing that, while the ultimate issue on appeal certainly

encompasses the trial court’s imposition of an allegedly illegal sentence, the State is

correct that the caselaw cited by the Defendant does not stand for the proposition that

Rule 36.1 is the only avenue to challenge such a sentence. The Defendant cites to Moody

v. State, in which the Tennessee Supreme Court held that a writ of certiorari was not

properly available to a defendant seeking to challenge a trial court’s denial of a motion to

correct an illegal sentence because the writ was only available in the absence of a plain,

speedy, or adequate remedy, which the defendant had in the form of a habeas corpus

petition. 160 S.W.3d 512, 516 (Tenn. 2005). Because Moody was decided prior to the

adoption of Rule 36.1, based on the statutory requirements of the writ of certiorari, and

based on the statutory availability of the writ of habeas corpus, we conclude that it could

not conceivably stand for the proposition that Rule 36.1 provides the only mechanism to

challenge the imposition of an allegedly illegal sentence. See id.; T.C.A. §§ 27-8-101;

29-21-107; Tenn. R. Crim. P. 36.1 (effective July 1, 2013); see also Tenn. R. App. P. 3,

Advisory Comm’n Cmt. [2013] (“With the adoption of [Rule 36.1 in 2013], this rule

(Tenn. R. App. P. 3) was amended to provide for an appeal as of right, by either the

defendant (see paragraph 3(b)) or the State (see paragraph 3(c)), from the trial court’s

ruling on a motion filed under Tenn. R. Crim. P. 36.1 to correct an illegal sentence.”).

The Defendant’s citation to State v. Brown, likewise does not support the proposition that

the State was required to file a separate Rule 36.1 motion in order to raise the issue. 479

S.W.3d 200, 209 (Tenn. 2015) (noting that Rule 36.1 differs from habeas corpus in part

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by permitting the State to challenge an illegal sentence and that Tennessee Rule of

Appellate Procedure 3 provides an appeal as of right from a trial court’s decision on a

Rule 36.1 motion).

Accordingly, although the State (or the Defendant) could certainly have filed a

motion to correct an illegal sentence under Rule 36.1 to challenge the trial court’s ruling,

we conclude that the failure to do so does not foreclose appellate review so long as there

exists a jurisdictional basis for the appeal. See State v. Julie Fuller, a.k.a. Julie Cole, No.

W2013-00900-CCA-R3-CD, 2014 WL 1669958, at *1 (Tenn. Crim. App. Apr. 25, 2014)

(concluding that the trial court erred in refusing to modify the defendant’s sentence under

Rule 35 when the original sentence was illegal); see also State v. Roy Lee Sewell, No.

M2014-02060-CCA-R3-CD, 2015 WL 2393462, at *2 (Tenn. Crim. App. May 18, 2015)

(reviewing the revocation of the defendant’s probation and upholding the trial court’s sua

sponte correction of an illegal sentence during the revocation because “trial courts have

the authority to correct an illegal sentence at any time, even if it has become final” (citing

State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978), superseded by statute on other

grounds as stated in Brown, 479 S.W.3d at 206)).

We turn then to the jurisdictional basis of the current appeal. The State has no

right to appeal in a criminal prosecution “unless the right is expressly conferred by a

constitutional provision or by statute.” State v. Meeks, 262 S.W.3d 710, 718 (Tenn.

2008). A statute conferring a right of appeal to the State “will be strictly construed to

apply only to the circumstances defined in the statute.” Id.

Cognizant of the change in the MVHO statute, the Defendant filed a “Motion for

New Trial, Verdict of Acquittal, or Modification of Sentence” in which he requested the

trial court to modify his MVHO sentence from five years and a $1,500 fine to no penalty.

The trial court was persuaded by the Defendant’s argument that he should benefit from

the intervening change to the statute. The court ultimately filed an “Order Granting

Motion for Modification of Sentence” in which it explained that it was modifying the

sentence because the savings statute required it to apply the new, lesser penalty.

Tennessee Rule of Criminal Procedure 35 permits a trial court to reduce a sentence

pursuant to a motion filed within the statutory period. Tenn. R. Crim. P. 35(a). Such a

“modification” is limited to the imposition of only a sentence “the court could have

originally imposed.” Tenn. R. Crim. P. 35(b). Rule 35 also provides that “[i]f the court

modifies the sentence, the state may appeal as otherwise provided by law.” Tenn. R.

Crim. P. 35(d). The Advisory Commission Comment to Rule 35 states, “If there is a

modification, the state may appeal.”

In State v. Tolle, the State appealed the trial court’s application of the savings

statue to reduce a defendant’s sentence after the theft grading statute was amended to

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provide lesser penalties. 591 S.W.3d 539, 540-41 (Tenn. 2019). The Tennessee Supreme

Court concluded that the trial court had implicitly relied on Rule 35 in resentencing the

defendant and that “Rule 35 expressly provides for a State appeal when the trial court

modifies the sentence thereunder.” Id. at 544. Accordingly, the Tennessee Supreme

Court held that jurisdiction over the State’s challenge to the application of the savings

statute to reduce the sentence was proper under Rule 35. Id. We conclude that the case

before us likewise demonstrates that the trial court was implicitly acting under Rule 35 in

reducing the Defendant’s sentence and that, under Tolle, Rule 35 conveys jurisdiction.

The Defendant’s perverse argument that the alleged lack of authority to impose the

sentence renders it unappealable under Rule 35 misses the point of appellate review. The

fact that the trial court allegedly exceeded its authority is in fact the error asserted on

appeal. See id. (allowing the State to appeal based on its assertion that the trial court did

not have the authority to reduce the defendant’s sentence pursuant to the savings statute).

If there were no basis for asserting error, we presume neither party would file a frivolous

appeal. The existence of an error would not serve to defeat our jurisdiction.

Moreover, Tennessee Code Annotated section 40-35-402 provides that the State

may appeal sentencing issues including the length of sentence and imposition of fines.

T.C.A. § 40-35-402(b). The statute provides that the appeal should be limited to the

grounds listed in subsection -402(b):

(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;

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

(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(b). In State v. Menke, the State sought to appeal the trial court’s

sentencing of the defendant under the amended theft grading statute. 590 S.W.3d 455,

456 (Tenn. 2019). The Tennessee Supreme Court concluded that the trial court’s

sentencing of the defendant necessarily implicated a determination both regarding the

offense classification and regarding offender classification, and that the State could

properly appeal these determinations under Tennessee Code Annotated section 40-35-

402(b)(1). Id. at 464. Here, the State likewise asserts that the Defendant was sentenced

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to the incorrect range. Accordingly, under Menke, this court has jurisdiction pursuant to

Tennessee Code Annotated section 40-35-402(b).

II. Application of the Savings Statute

The State asserts that the trial court erred in applying the savings statute and that it

ultimately imposed an illegal sentence. The Defendant counters that the absence of a

penalty under the amended statute is a lesser penalty such that the trial court properly

applied the savings statute. We conclude that the absence of a penalty is a lesser penalty

and removing penalties from the offense effectuates the intent of the Legislature.

Accordingly, we affirm the trial court’s judgment.

To determine whether the trial court properly applied the savings statute in

reducing the Defendant’s sentence, we must engage in statutory construction. The

interpretation of a statute is a question of law reviewed de novo with no presumption of

correctness. State v. McNack, 356 S.W.3d 906, 908 (Tenn. 2011); see Tolle, 591 S.W.3d

at 544 (reviewing de novo a question of statutory interpretation which was the basis for

the trial court’s granting of a Rule 35 motion). “The most basic principle of statutory

construction is to ascertain and give effect to legislative intent without broadening the

statute beyond its intended scope.” Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009).

“We presume that every word in a statute has meaning and purpose and should be given

full effect if the obvious intention of the General Assembly is not violated by so doing.”

State v. Sherman, 266 S.W.3d 395, 401 (Tenn. 2008). “Penal statutes are to be construed

giving fair import of their terms in a way which promotes justice and effectuates the

objectives of the criminal code.” Id. (citing T.C.A. § 39-11-104 (2006)). When statutory

language is clear, the court must apply the statute’s plain meaning. Id. “When a statute

is ambiguous, however, we may reference the broader statutory scheme, the history of the

legislation, or other sources.” Id. (citing Parks v. Tenn. Mun. League Risk Mgmt. Pool,

974 S.W.2d 677, 679 (Tenn. 1998)). “We are to construe ‘in pari materia’ those statutes

relating to the same subject or having a common purpose.” State v. Edmondson, 231

S.W.3d 925, 927 (Tenn. 2007) (citing State v. Collins, 166 S.W.3d 721, 726 (Tenn.

2005)). We presume the Legislature is aware of its own prior enactments and the state of

the law at the time of the passage of legislation. Id. A statute is presumed to apply

prospectively in the absence of clear legislative intent to the contrary. Van Tran v. State,

66 S.W.3d 790, 797-98 (Tenn. 2001).

The Defendant’s conviction was the result of a violation of Tennessee Code

Annotated section 55-10-616, which provided that “[a]ny person found to be an habitual

offender under this part who thereafter is convicted of operating a motor vehicle in this

state while the judgment or order of the court prohibiting such operation is in effect

commits a Class E felony.” T.C.A. § 55-10-616(b) (2018). On May 24, 2019, the

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Legislature passed a law which provided that the entirety of Tennessee Code Annotated,

Title 55, Chapter 10, Part 6 was deleted and replaced with language providing for a

method of petitioning the court for a reinstatement of a license lost pursuant to the

MVHO Act. 2019 Tenn. Pub. Acts, ch. 486, § 3. The parties dispute whether the

Defendant can benefit from the change in the law.

A. Effective Date

While the parties both assume that the effective date of the repeal of the previous

version of the law is July 1, 2019, we note that the statute itself is less than clear

regarding the effective date.

Section 15 of the law provides:

Section 3 of this act that authorizes a person whose driver license has been

revoked or restricted prior to July 1, 2019, to petition a court for

reinstatement of the person’s driver license shall take effect thirty (30) days

after the date upon which the commissioner of safety provides written

notification to the secretary of state and the executive secretary of the

Tennessee code commission that the department of safety’s “A-list” driver

license program is capable of implementing this act, or it shall take effect

January 1, 2020, whichever is earlier, the public welfare requiring it. For

all other purposes, this act shall take effect July 1, 2019, the public welfare

requiring it.

2019 Tenn. Pub. Acts, ch. 486, § 15. The commissioner of safety sent the written

notification required by Section 15 on October 15, 2019, informing the parties that the

department was capable of implementing the law as of October 14, 2019, and the thirty

day period was triggered for the remainder of the Act to take effect in November.

Section 3 includes both language deleting the entirety of Tennessee Code

Annotated, Title 55, Chapter 10, Part 6 and language providing for a method of

petitioning the court for a reinstatement of a license lost under the MVHO Act. 2019

Tenn. Pub. Acts, ch. 486, § 3. It is not clear from the statutory language of Section 15 if

the entirety of Section 3, repealing the act and authorizing a petition to reinstate a license,

has a delayed effective date under the statute or if the delayed effective date applies only

to the authorization of petitions to reinstate a license with the repeal going into effect on

July 1, 2019.

The February 24, 2019, fiscal memorandum’s summary of amendment 004195 in

the Senate summarized that the amendment “[d]eletes and replaces the effective date of

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the bill such that the only substantive change is to change the effective date of the repeal

of the Motor Vehicle Habitual Offenders Act to January 1, 2020.” Senator John Stevens,

speaking in the Senate Judiciary Committee on February 26, 2019, noted that amendment

004195 was based on the Department of Safety’s need for extra time to update the system

for the MVHO amendment and that the effective date of sections 1, 2, and 3 would be

January 1, 2020. The Amendment itself provided that Sections 1, 2, and 3 would take

effect January 1, 2020, while the remaining sections would take effect July 1, 2019.

However, this language was subsequently changed in an amendment introduced in the

Senate Finance, Ways, and Means Committee on April 24, 2019, which altered the

language to that in the final bill. We conclude that this change indicates that the State

Senate intended to change the effective date for only a portion of Section 3 in the final

version of the legislation.

Furthermore, the fiscal memorandum’s summary of amendment 005918 to House

Bill 167 and amendments 005342 and 007440 to Senate Bill 403 describes the effect of

the amendment as changing:

the effective date of the authorization of a person whose driver license was

revoked or restricted as a result of the Motor Vehicle Habitual Offender Act

to petition a court for reinstatement of the person’s driver license to 30 days

after the date upon which the Commissioner of the Department of Safety

provides written notification to the Secretary of State and the Executive

Secretary of the Tennessee Code Commission that the Department’s “A-

list” driver license program is capable of implementing the act or January 1,

2020, whichever is earlier.

Representative William Gary Lamberth II in the House Judiciary Committee on March

13, 2019, noted that amendment 005342 was initiated by the Department of Safety and

“just deals with reinstatement of license and gets the timing right for the department.”

We observe that the Act itself provides for a petition for the reinstatement of a

license lost under the MVHO Act “prior to July 1, 2019.” Reading this phrase in pari

materia, we conclude that the Legislature intended the repeal to go into effect on that

date. The alternative reading, that the repeal would only become effective after written

notification or January 1, 2020, would leave a subsection of defendants who would be

subject to revocation of their license between July 1, 2019 and the effective date of the

act but not eligible to petition for reinstatement. Such a result would be absurd, and this

court must presume that the Legislature did not intend an absurdity. Fletcher v. State,

951 S.W.2d 378, 382 (Tenn. 1997). Accordingly, we conclude that the repeal became

effective on July 1, 2019.

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B. Lesser Penalty

The Defendant’s sentencing took place after the MVHO Act was repealed. The

Defendant argued at sentencing that the savings statute should apply to reduce his

available sentence, which was originally four to six years, to no penalty, and the trial

court ultimately granted the Defendant’s motion to modify his sentence on this basis.

The State asserts on appeal that the amendment to the MVHO statute is governed by the

first sentence of the savings statute, providing that the defendant should be prosecuted

under the law in effect at the time of the offense, and that the section of the savings

statute providing for the application of a lesser penalty does not apply because the penalty

was not altered by the 2019 amendment to the MVHO statute. See T.C.A. § 39-11-112.

The Defendant argues that no penalty is a “lesser penalty” under the statute. See id.

After a review of the legislative history of the MVHO amendment, we are persuaded that

the savings statute applies because no penalty is a lesser penalty.

Tennessee Code Annotated section 39-11-112, the savings statute, addresses

“Repealed or amended statutes; prosecution.” The statute provides:

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.

T.C.A. § 39-11-112.

Under the prior version of the MVHO Act, if the court found that the defendant

was a habitual offender, it was required to “make an order directing that the person shall

not operate a motor vehicle on the highways of this state and that the person shall

surrender to the court all licenses to operate a motor vehicle upon the highways of this

state.” T.C.A. § 55-10-613(a) (2018). The Defendant here was declared a habitual

offender and had accordingly lost the privilege of driving. At the time the Defendant was

stopped for a malfunctioning light, the statute provided that “[a]ny person found to be an

habitual offender under this part who thereafter is convicted of operating a motor vehicle

in this state while the judgment or order of the court prohibiting such operation is in

effect commits a Class E felony.” T.C.A. § 55-10-616(b) (2018).

On May 24, 2019, the Legislature passed a law including the following language:

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SECTION 3. Tennessee Code Annotated, Title 55, Chapter 10, Part 6, is

amended by deleting the part and substituting instead the following: