State of Tennessee v. George H. Person

06/23/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 6, 2021 Session

STATE OF TENNESSEE v. GEORGE H. PERSON

Appeal from the Circuit Court for Madison County

Nos. 20-80, 20-81 Roy B. Morgan, Jr., Judge

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No. W2020-00937-CCA-R3-CD

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The Defendant, George H. Person, pled guilty to two counts of driving after having been

declared a motor vehicle habitual offender (“MVHO”), two counts of driving on a

canceled, suspended, or revoked license, and a violation of the light law. The

Defendant’s sentencing took place after 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 ruled that the

Defendant was entitled to the lesser penalty of the amended statute under Tennessee

Code Annotated section 39-11-112, and the State appeals. We conclude that the savings

statute applies and that the Legislature’s act of removing punishment for the offense

constitutes a lesser penalty. Accordingly, we affirm the trial court’s judgments.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

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

Attorney General; Jody Pickens, District Attorney General; and Lee R. Sparks, Assistant

District Attorney General, for the appellee, State of Tennessee.

Jeremy Epperson (at plea), District Public Defender; and Brennan M. Wingerter (on

appeal), Assistant Public Defender – Appellate Division, for the appellant, George H.

Person.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant’s guilty pleas were the result of two traffic stops taking place prior

to the amendment of the MVHO statute. According to the warrants and presentence

report, on September 26, 2018, the Defendant committed no traffic infraction but was

stopped after a police officer, unprompted, ran his license plate and discovered that the

vehicle was registered to the Defendant and that the Defendant had been declared an

MVHO. On March 21, 2019, the Defendant was stopped for driving without his

headlights activated “during night[]time hours” and was discovered to be driving while

his license was revoked after having been declared an MVHO. The Defendant was

charged in two separate indictments with two counts of driving after having been

declared an MVHO, two counts of driving on a canceled, suspended, or revoked license,

and violation of the light law.

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 a

provision allowing a person whose license had been revoked solely due to the person’s

status as an MVHO to petition to reinstate his or her driver’s license. See T.C.A. § 55-

10-601 (Supp. 2019).

The entry of pleas and sentencing took place in 2020, after the effective date of the

amendment to the MVHO statute. See 2019 Tenn. Pub. Acts, ch. 486, § 15; State v.

Marvin Maurice DeBerry, No. W2019-01666-CCA-R3-CD, 2021 WL 1561688, at *5-6

(Tenn. Crim. App. Apr. 21, 2021). The Defendant entered guilty pleas to all charges with

no agreement as to sentencing in place. The presentence report indicated that the

Defendant maintained steady employment and that while he “did not make an official

statement for this report, … he did say that he had been driving to work.” The parties

agreed at sentencing that the Defendant was a career offender, and according to the

presentence report, several of the Defendant’s prior felonies were for previous counts of

driving after having been declared an MVHO. Defense counsel argued that the

Defendant should benefit from the change in the MVHO law and 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. The trial court

agreed that the savings statute would apply and entered judgments imposing no sentence

on the MVHO convictions and imposing sentences of six months of probation for each

driving on a revoked license conviction and a sentence of thirty days’ probation for the

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light law violation. The March 2019 sentences were to be served consecutively to the

September 2018 sentence. The State appeals the trial court’s decision to apply the

savings statute to the MVHO offenses.

ANALYSIS

On appeal, the State argues that the trial court erred in applying the savings statute

when it imposed the sentences on the MVHO offenses. The Defendant responds that the

State has no right of appeal from the trial court’s decision and that the trial court was

correct in its ruling. We conclude that the State has a right of appeal and that the trial

court did not err in applying the savings statute. Accordingly, we affirm the judgments.

I. Jurisdiction

The Defendant argues that the State cannot premise jurisdiction on the trial court’s

allegedly imposing a sentence outside the proper range because the State’s argument is

best understood as asserting that the sentence is illegal. The Defendant contends that if

the sentence is illegal, we cannot review its illegality because the State has not filed a

motion under Tennessee Rule of Criminal Procedure 36.1. The State counters that it has

a right of appeal under Tennessee Code Annotated section 40-35-402(b). We conclude

that the State has a right of appeal.

Initially, we reject the Defendant’s contention that, because the State’s argument

encompasses the contention that the sentence was illegal, the State was precluded from

raising the issue unless it filed a Rule 36.1 motion. The Defendant relies on Moody v.

State, which concerned the availability of a writ of certiorari to a defendant seeking to

challenge a trial court’s denial of a motion to correct an illegal sentence. 160 S.W.3d

512, 516 (Tenn. 2005). The Tennessee Supreme Court held that the writ was unavailable

because it could only be issued in the absence of a plain, speedy, or adequate remedy and

because the defendant had such a remedy in the form of a habeas corpus petition. Id.

Because Moody was decided prior to the adoption of Rule 36.1, was based on the

statutory requirements of the writ of certiorari, and was based on the statutory availability

of the writ of habeas corpus, it cannot conceivably stand for the proposition that Rule

36.1 provides the only mechanism to challenge the imposition of an illegal sentence.

Marvin Maurice DeBerry, 2021 WL 1561688, at *2. State v. Brown, which affirmed that

the State had an appeal as of right from a trial court’s ruling on a Rule 36.1 motion,

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).

Accordingly, we reject the proposition that review is foreclosed because the State did not

file a Rule 36.1 motion. See State v. Julie Fuller, a.k.a. Julie Cole, No. W2013-00900-

CCA-R3-CD, 2014 WL 1669958, at *3 (Tenn. Crim. App. Apr. 25, 2014) (concluding

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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. Tennessee Code Annotated

section 40-35-402 provides that the State may appeal sentencing issues, including the

length of sentence. T.C.A. § 40-35-402(a). 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;

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(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 determination of the proper

sentencing range 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. The State’s argument here encompasses the assertion that, although the parties

agreed regarding the Defendant’s offender classification, the actual sentence imposed

was not within the correct range. Addressing the same issue, this court has previously

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determined that Tennessee Code Annotated section 40-35-402(b) provides a right of

appeal to the State when the State was seeking to challenge the trial court’s application of

the savings statute to the revised MVHO offense. See Marvin Maurice DeBerry, 2021

WL 1561688, at *4. Accordingly, this court has jurisdiction to address the issue pursuant

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

II. Application of the Savings Statute

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

the Defendant should have received a six-year sentence as a career offender. It asserts

that the savings statute does not apply because there is no lesser penalty in the amended

statute and that the legislative history is not favorable to the Defendant because the act

amending the statute affected various statutory provisions. The Defendant counters that

the trial court properly applied the savings statute because the Legislature provided a

lesser penalty in amending the statute and that the legislative history demonstrates the

intent of the amendment was to provide relief for those situated as the Defendant is

situated. We agree that the absence of a penalty is a lesser penalty and that removing

penalties from the offenses 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 State v. Tolle, 591

S.W.3d 539, 544 (Tenn. 2019) (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

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.

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The Defendant’s convictions were the result of a violation of Tennessee Code

Annotated section 55-10-616, prohibiting driving after having been declared an MVHO.

T.C.A. § 55-10-616(b) (2018). 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 had

been declared a habitual offender and had accordingly lost the privilege of driving. At

the time of the offenses, 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:

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

amended by deleting the part and substituting instead the following:

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.

2019 Tenn. Pub. Acts, ch. 486, § 3. The parties dispute whether the Defendant may

benefit from this change in the law.

A statute is generally 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). However, Tennessee Code Annotated section 39-11-112, the savings statute,

addresses “Repealed or amended statutes; prosecution.” Section 112 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

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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.

We are called to interpret whether the phrase “lesser penalty” applies to the

revised MVHO Act. The savings statute governs the prosecution of a defendant when the

statute criminalizing his or her conduct has been amended, and it contemplates two

situations. When a penal statute is repealed or amended, an offense committed while the

statute was in effect “shall be prosecuted under the act or statute in effect at the time of

the commission of the offense.” T.C.A. § 39-11-112. However, there is an exception to

the application of the prior law: “in the event the subsequent act provides for a lesser

penalty,” a defendant is entitled to the benefit of a lesser penalty. Id. The State asserts

that the Defendant was not entitled to the application of this provision because there is no

lesser penalty, as the offense has been decriminalized. The Defendant asserts that the

amended statute constitutes a lesser penalty.

This court was presented with the same question in Marvin Maurice Deberry.

There, we concluded that the parties offered “two reasonable statutory interpretations” of

this provision of the savings statute. Marvin Maurice Deberry, 2021 WL 1561688, at *8;

see Powers v. State, 343 S.W.3d 36, 50 n.20 (Tenn. 2011) (noting that, while an

ambiguity cannot be manufactured by a nonsensical interpretation, two reasonable

interpretations of a statute demonstrate an ambiguity). Concluding that the statute was

ambiguous, we examined the legislative history of the amendment to the MVHO statute.

Marvin Maurice Deberry, 2021 WL 1561688, at *8. Here, we likewise conclude that the

phrase “lesser penalty” is ambiguous because its application to the provision removing all

punishment for the MVHO offense is subject to reasonable debate.

In Marvin Maurice Deberry, we concluded that the legislative history indicated

that the purpose of the bill was to provide a lesser penalty. Id. We observed that the

history of the bill “demonstrates that the Legislature intended to provide for a decreased

punishment” by revising the MVHO statute. Id. We noted that the bill’s sponsors in the

Senate and House of Representatives both observed that the bill was meant to decrease

some penalties and increase others. Id. In particular, we noted that the bill was presented

to provide relief for those situated precisely as the Defendant in this case is situated:

To the Senate Finance, Ways, and Means Committee, Senator [John]

Stevens summarized the history of the statute, noting that the original intent

of the MVHO Act was to provide law enforcement with a tool for

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addressing multiple motor vehicle offenders but that laws prohibiting

driving under the influence now provided sufficient penalties. He implied

that circumstances similar to those under which the Defendant was charged

supported the elimination of the MVHO penalties: “People are still driving,

but now they are just driving illegally as they are trying to provide for their

family....” He characterized the bill as “a reduction in the criminal code.”

Prior to the passage of the bill in the Senate, Senator Stevens reiterated that

the new statute was intended to provide relief for those who, like the

Defendant, “would just continue to drive illegally either going to work or

something like that because they would have their license lost.”

Id. Senator Stevens noted in the Judiciary Committee meeting that the law would

decrease some penalties and increase others, and he put the amendment to the MVHO

statute in the category of decreased penalties. Id.

Here, the Defendant was charged with two counts of driving after having been

declared an MVHO. The Defendant committed no traffic infraction on one of the

occasions and on the other did not have his headlights on “during night[]time hours.”

According to the presentence report, the Defendant maintained long-term steady

employment, and he was traveling to work at the time he was stopped. This court must

attempt to give effect to the Legislature’s intent, Carter, 279 S.W.3d at 564, and we

conclude that legislative history overwhelmingly demonstrates the desire of the

Legislature to provide relief to those who would otherwise be subject to greater penalties

under the MVHO statute. In particular, the Legislature sought to avoid punishing those

who had been declared habitual offenders and continued driving to pursue their

livelihood, as the Defendant was doing.

We note that the Tennessee Supreme Court has previously given defendants the

benefit of the lesser of two punishments when the alteration of a statute resulted in a

lighter penalty. In State v. Pearson, the Tennessee Supreme Court concluded that, for an

offender who committed an offense prior to the passage of the 1989 Sentencing Act but

was sentenced after the effective date, the court “must calculate the appropriate sentence

under both the 1982 statute and the 1989 statute, in their entirety, and then impose the

lesser sentence of the two.” 858 S.W.2d 879, 884 (Tenn. 1993). Likewise, in Menke, the

Tennessee Supreme Court concluded that the amendment of the theft grading statute

imposed a lesser punishment under the savings statute. Menke, 590 S.W.3d at 468. The

Menke court concluded that “[u]nder the language of the Criminal Savings Statute, a clear

legislative directive regarding retroactive application is not required for a defendant to

benefit from the lesser punishment imposed by the subsequent act.” Id. at 470 (citing

Tenn. Code Ann. § 39-11-112). Here, we likewise conclude that, even in absence of a

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clear direction for retroactive application, the Defendant may benefit from the lesser

punishment under the savings statute.

Because we determine that no penalty is a lesser penalty under the savings statute,

we conclude that the trial court did not err in applying the lesser punishments to the

Defendant’s convictions. See Amber Jones, et al., v. Kent Coleman, et al., No. 3:16-CV-

00677, 2017 WL 3025596, at *3 (M.D. Tenn. July 14, 2017) (concluding that the

plaintiffs’ claims were moot in part because the law they were challenging, under which

they feared they could be fined for acts committed while the law was in place, had been

repealed, and the new law provided no penalties under the savings statute), aff’d sub nom.

Jones v. Haynes, 736 Fed. App’x 585 (6th Cir. 2018); compare State v. Ariel Ben

Sherman and Jacqueline P. Crank, No. E2006-01226-CCA-R3-CD, 2007 WL 2011032,

at **2, 4 (Tenn. Crim. App. July 12, 2007) (concluding the defendants could be

prosecuted under a repealed statute despite their argument that zero punishment was a

lesser penalty), aff’d by Sherman, 266 S.W.3d at 401 n.5 (noting that this court had

concluded that the savings statute applied to preserve prosecution under the former

version of the statute and observing that the issue was “not before [the Tennessee

Supreme] Court”). Accordingly, we affirm the trial court’s determination that the

Legislature’s act of reducing the penalty to nothing constituted the imposition of a lesser

penalty under the savings statute.

CONCLUSION

Based on the foregoing reasoning, we affirm the trial court’s judgments.

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JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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