State of Tennessee v. Marvin Maurice Deberry

08/30/2022

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 5, 2022 Session

STATE OF TENNESSEE v. MARVIN MAURICE DEBERRY

Appeal by Permission from the Court of Criminal Appeals

Circuit Court for Madison County

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

___________________________________

No. W2019-01666-SC-R11-CD

___________________________________

Timing is everything. In this case, at least, that adage holds true. Marvin Maurice Deberry

committed a criminal offense and was convicted. But the legislature repealed the statute

creating that criminal offense before he was sentenced. Years ago, the legislature enacted

a default rule to govern this situation and similar ones. That rule, known as the criminal

savings statute, provides generally that an offense must be prosecuted under the law in

effect at the time the offense is committed, even if the law is later repealed or amended.

See Tenn. Code Ann. § 39-11-112 (2018). If the later-enacted law “provides for a lesser

penalty,” however, the savings statute dictates that “any punishment imposed shall be in

accordance with the subsequent act.” Id. At first, the trial court sentenced Deberry under

the law in effect at the time of his offense. But Deberry eventually convinced the trial court

that the “lesser penalty” exception applied, and the trial court entered an amended judgment

retaining Deberry’s conviction but imposing no punishment. The Court of Criminal

Appeals affirmed. We now reverse and reinstate Deberry’s original sentence. We hold that

a statute that repeals a criminal offense does not “provide for a lesser penalty” within the

meaning of the criminal savings statute. Rather, a person who commits an offense that is

later repealed should be convicted and sentenced under the law in effect when the offense

was committed unless the legislature provides otherwise.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Reversed; Amended Judgment of the Circuit Court Vacated and Original

Judgment Reinstated

SARAH K. CAMPBELL, J., delivered the opinion of the court, in which ROGER A. PAGE, C.J.,

and SHARON G. LEE, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor

General; 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.

Brennan M. Wingerter, Assistant Public Defender – Appellate Director, and Jessica F.

Butler, Assistant Public Defender, Tennessee Public Defenders Conference; George

Morton Googe, District Public Defender; and Jeremy B. Epperson, Assistant Public

Defender, for the appellee, Marvin Maurice Deberry.

OPINION

I.

Understanding the legal question presented in this appeal requires familiarity with

three statutes. The first is the now-repealed Motor Vehicle Habitual Offenders Act—or

MVHO Act—which made it a class E felony to operate a vehicle after being declared a

motor vehicle habitual offender. Tenn. Code Ann. § 55-10-616 (2017) (repealed 2019).

The second is what we call the MVHO Repeal Act, a 2019 law that repealed the MVHO

Act and replaced it with a provision explaining how an MVHO can seek reinstatement of

a driver’s license that was revoked or restricted solely because of the person’s MVHO

status. Act of May 24, 2019, ch. 486, § 3, 2019 Tenn. Pub. Acts 1496 (codified at Tenn.

Code Ann. § 55-10-601 (2020)). The third is the criminal savings statute. The first sentence

of that statute provides generally that “[w]hen a penal statute or penal legislative act . . . is

repealed or amended by a subsequent legislative act, the offense . . . shall be prosecuted

under the act or statute in effect” when the offense was committed. Tenn. Code Ann. § 39-

11-112. The second sentence provides an exception to that general rule: “[I]n the event the

subsequent act provides for a lesser penalty, any punishment imposed shall be in

accordance with the subsequent act.” Id.

With that statutory background introduced, we now turn to the factual and

procedural history of this case. In 2018, law enforcement officers stopped Deberry for

driving with a malfunctioning brake light. Deberry was indicted for multiple traffic-related

offenses, including driving after being declared an MVHO, in violation of the MVHO Act,

Tenn. Code Ann. § 55-10-616(a). On May 15, 2019, a Madison County jury convicted him

on all counts and recommended a fine of $1,500 for the MVHO offense.

On May 2, 2019, about two weeks before Deberry was convicted, the Tennessee

legislature passed the MVHO Repeal Act. Act of May 24, 2019, ch. 486, § 3, 2019 Tenn.

Pub. Acts 1496.1 The Governor signed that legislation into law on May 24, 2019, and it

went into effect on July 1, 2019, about six weeks after Deberry was convicted. Id.

1

The MVHO Repeal Act was part of broader legislation that “amend[ed] Tennessee Code

Annotated, Title 39; Title 40 and Title 50, relative to criminal law.” Act of May 24, 2019, ch. 486, 2019

Tenn. Pub. Acts 1496.

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The MVHO Repeal Act accomplished two things. First, it repealed the MVHO Act,

including the offense of driving after being declared an MVHO. Id. (stating that the MVHO

Act “is amended by deleting the part and substituting instead the following”); see 1A

Sutherland Statutory Construction § 23:12 (7th ed.) (Nov. 2021 Update) (“When an

amendatory act purports to set out the original act or section as amended . . . all matter

omitted from the act or section the amendment purports to amend, is repealed.” (footnotes

omitted)). Second, it created a process by which an individual whose driver’s license was

“revoked or restricted due solely to the person’s status as [an MVHO] prior to July 1, 2019”

may seek reinstatement of that license. Tenn. Code Ann. § 55-10-601. Specifically, an

individual

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.

Id.

Deberry was sentenced on July 8, 2019, one week after the MVHO Repeal Act went

into effect. At his sentencing hearing, Deberry noted that the legislature had “recently

repealed” the MVHO Act and argued that his punishment should be in accordance with the

MVHO Repeal Act because it “essentially gets rid of the penalty” and thus constitutes a

“lesser penalty” within the meaning of the criminal savings statute. The trial court

disagreed and sentenced Deberry under the MVHO Act to a five-year sentence of split

confinement for the MVHO conviction, along with the recommended fine.

Deberry then filed a “Motion for New Trial, Verdict of Acquittal, or Modification

of Sentence,” in which he repeated his argument that the MVHO Repeal Act “does

not . . . provide for any penalty for any criminal conduct.” At the motion hearing, Deberry

reiterated that his five-year sentence “should be set aside” because the legislature

“repealed” the MVHO Act and “no penalty is a lesser penalty.” He clarified that he was

“not arguing that the conviction should be set aside but just the sentence.” The trial court

agreed that “no penalty is a lesser penalty,” granted Deberry’s motion for a reduction of

sentence, and entered an amended judgment as to count one reflecting Deberry’s MVHO

conviction but imposing no sentence.

The State appealed, and the Court of Criminal Appeals affirmed. State v. Deberry,

No. W2019-01666-CCA-R3-CD, 2021 WL 1561688, at *9 (Tenn. Crim. App. Apr. 21,

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2021), perm. app. granted, (Tenn. Sept. 23, 2021). After concluding that “the parties

provide[d] two reasonable statutory interpretations,” the court turned to the legislative

history of the MVHO Repeal Act to decide whether the legislature “intended to impose a

lesser penalty.” Id. at *8. Based on the statements of two lawmakers, the court determined

that the “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 [Act].” Id.

We granted the State’s application for permission to appeal to determine whether a

statute that repeals a criminal offense “provides for a lesser penalty” within the meaning of

the criminal savings statute.

II.

A.

When a trial court reduces a defendant’s sentence under Tennessee Rule of Criminal

Procedure 35, we review that decision for abuse of discretion. State v. Tolle, 591 S.W.3d

539, 545 (Tenn. 2019). But to the extent the trial court’s decision turns on the interpretation

and application of the criminal savings statute, our review is de novo with no presumption

of correctness. See id. at 543–46; see also Keen v. State, 398 S.W.3d 594, 599 (Tenn. 2012)

(“The construction of a statute and its application to the facts of a particular case present

questions of law which we review de novo.”). Moreover, a trial court necessarily abuses

its discretion when it commits an error of law. Koon v. United States, 518 U.S. 81, 100

(1996).

This Court’s role in statutory interpretation is “to determine what a statute means.”

Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 175 (Tenn. 2008).

Specifically, we must decide “how a reasonable reader, fully competent in the language,

would have understood the text at the time it was issued.” Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 33 (2012). Original public

meaning is discerned through consideration of the statutory text in light of “well-

established canons of statutory construction.” State v. Sherman, 266 S.W.3d 395, 401

(Tenn. 2008); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2442 (2019) (Gorsuch, J.,

concurring in the judgment) (noting that judges have employed “traditional tools of

interpretation . . . for centuries to elucidate the law’s original public meaning”).

We give the words of a statute their “natural and ordinary meaning in the context in

which they appear and in light of the statute’s general purpose.” Ellithorpe v. Weismark,

479 S.W.3d 818, 827 (Tenn. 2015) (quoting Johnson v. Hopkins, 432 S.W.3d 840, 848

(Tenn. 2013)). In the absence of statutory definitions, we look to authoritative dictionaries

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published around the time of a statute’s enactment. State v. Edmonson, 231 S.W.3d 925,

928 & n.3 (Tenn. 2007).

We consider the whole text of a statute and interpret each word “so that no part will

be inoperative, superfluous, void or insignificant.” Bailey v. Blount Cnty. Bd. of Educ., 303

S.W.3d 216, 228 (Tenn. 2010) (quoting Tidwell v. Collins, 522 S.W.2d 674, 676 (Tenn.

1975)). We also consider “[t]he overall statutory framework.” Coffee Cnty. Bd. of Educ. v.

City of Tullahoma, 574 S.W.3d 832, 846 (Tenn. 2019). “[S]tatutes ‘in pari materia’—those

relating to the same subject or having a common purpose—are to be construed

together . . . .” Wilson v. Johnson Cnty., 879 S.W.2d 807, 809 (Tenn. 1994).

We presume that a statute applies prospectively unless the legislature clearly

provides for its retroactive application. State v. Thompson, 151 S.W.3d 434, 442 (Tenn.

2004); Hannum v. Bank of Tenn., 41 Tenn. (1 Cold.) 398, 402 (1860) (“The very essence

of a new law . . . is a rule for future cases.”).

When a statute’s meaning is clear and unambiguous after consideration of the

statutory text, the broader statutory framework, and any relevant canons of statutory

construction, we “enforce the statute as written.” Johnson, 432 S.W.3d at 848. But when a

penal statute remains “grievous[ly] ambigu[ous] or uncertain[],” Huddleston v. United

States, 415 U.S. 814, 831 (1974), the rule of lenity operates as a “tie-breaker” and requires

us to resolve the ambiguity in the defendant’s favor, State v. Welch, 595 S.W.3d 615, 623

n.4 (Tenn. 2020) (quoting State v. Marshall, 319 S.W.3d 558, 563 (Tenn. 2010)).

B.

The criminal savings statute is a legislative abrogation of the common-law doctrine

of abatement. We therefore begin by reviewing this common-law doctrine and later

legislative developments.

At common law, the repeal—or even the amendment—of a criminal offense abated

all prosecutions for that offense that had not yet reached a final disposition. Bradley v.

United States, 410 U.S. 605, 607 (1973); Richardson v. State, 43 Tenn. (1 Cold.) 122, 123

(1866); Roberts v. State, 2 Tenn. (1 Overt.) 423, 425 (1815). This rule applied even when

a statutory amendment merely reduced the penalty for a criminal offense. Bradley, 410

U.S. at 608; Roberts, 2 Tenn. (1 Overt.) at 425. A legislature could prevent abatement by

including a savings clause in the repealing or amending statute. But if it did not, the

defendant would get off scot-free, even if his conduct was illegal at the time it occurred.

Bradley, 410 U.S. at 607–08; Roberts, 2 Tenn. (1 Overt.) at 425.

In 1858, our legislature enacted a general savings statute applicable to both civil and

criminal proceedings, which has remained on the books ever since. Tenn. Code Ann. § 1-

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3-101 (2014) (prior versions at Code of Tennessee § 49 (1858); Shannon’s Code § 61

(1917); Tennessee Code § 12 (1932); Tenn. Code Ann. § 1-301 (1956)). It states that “[t]he

repeal of a statute does not affect any right which accrued, any duty imposed, any penalty

incurred, nor any proceeding commenced, under or by virtue of the statute repealed.” Id.

Shortly after its enactment, we held that this statute clearly abrogated the common-law

doctrine of abatement. Richardson, 43 Tenn. (1 Cold.) at 124. The statute permits

prosecutions for a repealed or amended criminal offense under the law in effect when the

offense was committed. Id.

In 1968, the legislature enacted the criminal savings statute. Act of April 4, 1968,

ch. 513, § 1, 1968 Tenn. Pub. Acts 236–37. As amended, that statute provides that

[w]hen 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,[2] in the event the subsequent act provides for a lesser penalty, any

punishment imposed shall be in accordance with the subsequent act.

Tenn. Code Ann. § 39-11-112.

The first sentence of the criminal savings statute imports the principles of the

general savings statute into Title 39. See State v. Hutchison, 898 S.W.2d 161, 176–77, 177

& n.2 (Tenn. 1994) (order on petition to rehear) (noting that the criminal savings statute

“has been part of our statutory law in one form or another since [1858]”). The second

sentence creates an exception for ameliorative legislation that “provides for a lesser

penalty.” Tenn. Code Ann. § 39-11-112.3

2

Tennessee Code Annotated section 40-35-117 (2019), which governs the applicability of the

Tennessee Criminal Sentencing Reform Act of 1989, is not implicated in this case.

3

Although the general savings statute does not contain this lesser-penalty exception, a similar

exception appears in every major revision of the Tennessee Code. See Code of Tennessee § 45 (1858) (“No

offence committed, and no penalty or forfeiture incurred under any act hereby repealed, and before the

repeal takes effect, shall be affected by the repeal; except that when a punishment, penalty, or forfeiture is

mitigated by the provisions herein contained, such provisions may be applied to the judgment pronounced

after the repeal.”); Shannon’s Code § 59a3 (1917) (same); Tennessee Code § 8 (1932) (same); Tenn. Code

Ann. § 1-208 (1956) (similar). Unlike the criminal savings statute, however, these provisions applied only

to criminal offenses repealed and reenacted by the revised code. Code of Tennessee § 45 (1858); Shannon’s

Code § 59a3 (1917); Tennessee Code § 8 (1932); Tenn. Code Ann. § 1-208 (1956).

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C.

This case requires us to interpret the phrase “provides for a lesser penalty” in the

criminal savings statute. More precisely, we must determine whether the MVHO Repeal

Act “provides for a lesser penalty” as a reasonable reader would have understood that

phrase at the time the criminal savings statute was enacted. After applying traditional tools

of statutory interpretation, we conclude that the phrase “provides for a lesser penalty” does

not encompass a statute like the MVHO Repeal Act that eliminates an offense altogether

rather than reducing the punishment for that offense.

1.

We start by examining the phrase “provides for a lesser penalty” in the criminal

savings statute. Tenn. Code Ann. § 39-11-112. Because those words are not statutorily

defined, we give them their “natural and ordinary meaning.” Ellithorpe, 479 S.W.3d at 827

(quoting Johnson, 432 S.W.3d at 848).

When “provide” is used as an intransitive verb, as it is here, it means “[t]o make a

stipulation or condition.” Provide, American Heritage Dictionary of the English Language

1053 (1969); see also Provide, Webster’s Third New International Dictionary 1827 (1971)

(“to make a proviso or stipulation”); Provide, 12 The Oxford English Dictionary 713 (2d

ed. 1989) (“To make it, or lay it down as, a provision or arrangement; to stipulate that”).

For example, “[t]he Constitution provides for a bicameral legislature.” Provide, American

Heritage Dictionary of the English Language 1053 (1969).

The adjective “lesser” means “[s]maller or less in size, amount, value, or

importance, especially in a comparison between two things.” Lesser, American Heritage

Dictionary of the English Language 750 (1969); see also Lesser, 8 The Oxford English

Dictionary 842 (2d ed. 1989) (“less”). The adjective “less,” a “comparative of little,” means

“[n]ot as great in magnitude or degree.” Less, American Heritage Dictionary of the English

Language 750 (1969); see also Less, 8 The Oxford English Dictionary 840 (2d ed. 1989)

(“Of not so great size, extent, or degree (as something mentioned or implied)”).

A “penalty” is a punishment, not limited to incarceration, that is imposed as a

consequence for violating the law. Penalty, Ballentine’s Law Dictionary 929 (3d ed. 1969)

(“In the broad sense of the term, the consequences visited by law upon the heads of those

who violate the law, particularly provisions of the criminal law and police regulations.”);

Penalty, Black’s Law Dictionary 1290 (4th rev. ed. 1968) (“a punishment imposed by

statute as a consequence of the commission of an offense”); Kokesh v. SEC, 137 S. Ct.

1635, 1642 (2017) (“A ‘penalty’ is a ‘punishment, whether corporal or pecuniary, imposed

and enforced by the State, for a crime or offen[s]e against its laws.’” (alteration in original)

(quoting Huntington v. Attrill, 146 U.S. 657, 667 (1892))).

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These definitions suggest that a subsequent act “provides for a lesser penalty” when

it stipulates a punishment that is smaller in magnitude or degree than the penalty originally

imposed for the commission of the same criminal offense. So interpreted, the phrase

“provides for a lesser penalty” does not encompass a law that repeals a criminal offense. A

law that repeals a criminal offense does not stipulate any punishment, let alone a reduced

punishment. It instead eliminates the criminal offense altogether. And the adjective “lesser”

presupposes the existence of the noun it modifies. Like the term “less,” it signifies a

difference “in magnitude or degree”—not the complete elimination of the thing being

compared. Less, American Heritage Dictionary of the English Language 750 (1969). To

illustrate the point, no one would understand a “lesser evil” to include a choice that is not

evil at all.

Consideration of statutory context and the broader statutory framework reinforces

our conclusion that a statute that repeals a criminal offense does not “provide for a lesser

penalty.” The first sentence of the criminal savings statute—like the general savings

statute—unambiguously preserves the State’s ability to prosecute crimes committed before

the repeal of a criminal offense. Tenn. Code Ann. § 39-11-112 (“When a penal statute or

penal legislative act of the state is repealed or amended by a subsequent legislative act, the

offense . . . shall be prosecuted under the act or statute in effect at the time of the

commission of the offense.” (emphasis added)). The MVHO Repeal Act repealed the

offense of driving after being declared an MVHO, so it fits squarely within the first

sentence of the criminal savings statute.

The Court of Criminal Appeals’ interpretation—that “lesser penalty” includes no

penalty—renders the first sentence of the criminal savings statute largely meaningless as

applied to “repealed” offenses, which “shall be prosecuted” under the law in effect when

the offense was committed. Id. To “prosecute” someone for a criminal offense includes not

only adjudicating guilt, but also imposing a punishment. See Prosecute, Black’s Law

Dictionary 1385 (4th rev. ed. 1968) (“To ‘prosecute’ an action is not merely to commence

it, but includes following it to an ultimate conclusion.”); Prosecute, Ballentine’s Law

Dictionary 1013 (3d ed. 1969) (“To maintain rather than to commence or begin an

action.”); Prosecute, Webster’s Third New International Dictionary 1820 (1971) (“to

accuse of some crime or breach of law or to pursue for redress or punishment of a crime or

violation of law in due legal form before a legal tribunal”); Bradley, 410 U.S. at 609 (“In

the legal sense, a prosecution terminates only when sentence is imposed.”). If the phrase

“provides for a lesser penalty” encompasses a repeal, then the lesser-penalty exception

would almost completely swallow the general rule. The State could “prosecute” someone

only to the point of conviction but would be unable to impose any punishment. But see

Tenn. R. Crim. P. 32(b) (“After a verdict or plea of guilty, the court shall set the

sentence . . . .” (emphasis added)); Tenn. R. Crim. P. 32(e)(2)(C) (“A judgment of

conviction shall include . . . the adjudication and sentence.” (emphasis added)).

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Punishment-free prosecutions of this sort are not only contrary to the ordinary

meaning of the term “prosecute,” but also inconsistent with the “overall statutory

framework” of criminal sentencing. Coffee Cnty. Bd. of Educ., 574 S.W.3d at 846. Consider

the two statutory provisions that immediately follow the criminal savings statute. Section

39-11-113 instructs that “[e]very person who is convicted of a felony, the punishment for

which is not otherwise prescribed by a statute of this state, shall be sentenced as for a Class

E felony.” Tenn. Code Ann. § 39-11-113 (2018). And section 39-11-114 provides that

“[e]very person who is convicted of a misdemeanor, the punishment for which is not

otherwise prescribed by a statute of this state, shall be sentenced as for a Class A

misdemeanor.” Id. § 39-11-114 (2018). These provisions reflect the legislature’s policy

determination that all crimes should have a corresponding punishment, which further

reinforces our conclusion that the criminal savings statute does not contemplate

punishment-free prosecutions.

We also find it persuasive that other courts have reached similar conclusions. For

example, the Court of Criminal Appeals has twice held that the redefinition of a criminal

offense (which, at common law, operated as a repeal) did not trigger the lesser-penalty

provision of the criminal savings statute. State v. Brimmer, No. E2014-01393-CCA-R3-

CD, 2014 WL 7201795, at *2–3 (Tenn. Crim. App. Dec. 18, 2014), perm. app. denied,

(Tenn. Apr. 10, 2015); State v. Sherman, No. E2006-01226-CCA-R3-CD, 2007 WL

2011032, at *2–5 (Tenn. Crim. App. July 12, 2007), aff’d, 266 S.W.3d 395 (Tenn. 2008).

In both cases, the prosecutions were saved by the first sentence of the criminal savings

statute. Brimmer, 2014 WL 7201795, at *2–3; Sherman, 2007 WL 2011032, at *2–5.

At least eight other states have savings statutes with an exception for ameliorative

amendments that reduce the penalty for a crime. 5 Ill. Comp. Stat. 70/4 (2020); Iowa Code

§ 4.13 (2022); Ky. Rev. Stat. Ann. § 446.110 (LexisNexis 2021); Ohio Rev. Code Ann.

§ 1.58 (West 2004); Tex. Gov’t Code Ann. § 311.031 (West 2013); Vt. Stat. Ann. tit. 1,

§ 214 (2015); Va. Code Ann. § 1-239 (2017); W. Va. Code Ann. § 2-2-8 (2022). Several

courts in these jurisdictions have refused to apply the ameliorative exception when a

criminal offense was repealed or redefined. See People v. Glisson, 782 N.E.2d 251, 254–

57 (Ill. 2002) (repealed); State v. Easton, 510 S.E.2d 465, 478–83 (W. Va. 1998)

(redefined); State v. Matthews, 310 A.2d 17, 18–20 (Vt. 1973) (repealed); Smith v. State,

620 S.W.3d 445, 450–53 (Tex. Ct. App. 2020) (redefined); see also Rodgers v.

Commonwealth, 285 S.W.3d 740, 752 (Ky. 2009) (holding that statutory amendments to

the self-defense statute did not provide for a lesser penalty) (citing Commonwealth v.

Louisville & N.R. Co., 215 S.W. 938 (Ky. Ct. App. 1919)); State v. Lee, No. 20-1584, 2021

WL 5475460, at *2 n.4 (Iowa Ct. App. Nov. 23, 2021) (“We also question whether the

elimination of a penalty by repeal of a statute is a ‘reduction’ of the penalty . . . .”). These

authorities further buttress our conclusion that the repeal of a criminal offense does not fall

within the ameliorative exception of the criminal savings statute.

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The Court of Criminal Appeals cited our decisions in State v. Menke, 590 S.W.3d

455 (Tenn. 2019), and State v. Pearson, 858 S.W.2d 879 (Tenn. 1993), as support for its

contrary holding. Deberry, 2021 WL 1561688, at *9. But those decisions are readily

distinguishable. Menke involved a legislative amendment to the grading of theft offenses

that “effectively changed the punishment for certain theft offenses” and “reduced the

punishment for the defendant’s crime.” 590 S.W.3d at 468–69. We held that those

amendments “clearly provide[d] for a ‘lesser penalty’ than the previous version of the theft

grading statute” and therefore triggered the criminal savings statute’s “lesser penalty”

exception. Id. at 470. Pearson dealt with a narrow class of criminal offenders—those who

committed crimes after July 1, 1982, and before November 1, 1989, when the Criminal

Sentencing Reform Act of 1989 became effective. 858 S.W.3d at 880. We held that, for

this narrow category of defendants, trial courts “must calculate the appropriate sentence

under both the 1982 sentencing statute and the 1989 [sentencing statute], and then impose

the lesser sentence of the two.” Id. That result was required by the express language of the

Criminal Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-117(b) (2019) (“[A]ny

person sentenced on or after November 1, 1989, for an offense committed between July 1,

1982, and November 1, 1989, shall be sentenced under this chapter.”), as well as the

criminal savings statute itself, id. § 39-11-112 (“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.” (emphasis added)). Importantly, neither Menke

nor Pearson involved the repeal of a criminal offense. We thus had no opportunity in those

cases to consider how the criminal savings statute applies to a repealing statute.

This case, by contrast, squarely presents that question. And we now hold that a

statute that repeals a criminal offense does not “provide[] for a lesser penalty” within the

meaning of the criminal savings statute. Id.

2.

The Court of Criminal Appeals’ contrary decision rested heavily on the legislative

history of the MVHO Repeal Act. The court turned to that legislative history almost

immediately, after summarily concluding that the “lesser penalty” language of the criminal

savings statute was ambiguous because “the parties [had] provide[d] two reasonable

statutory interpretations.” Deberry, 2021 WL 1561688, at *8. The court offered no

independent interpretation of the disputed statutory provisions, nor did it apply any canons

of statutory construction or other traditional tools of statutory interpretation that might

illuminate the meaning of the statutory text. See id.

Respectfully, the Court of Criminal Appeals’ approach was flawed. A court should

deem statutory language ambiguous only after employing all of the traditional tools of

statutory construction, including consulting dictionary definitions, examining statutory

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structure and context, and applying well-established canons of statutory construction. To

be sure, “employing the traditional tools of statutory construction may require some effort.”

Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 970 (11th Cir. 2016) (en banc). But

“that effort does not make a text ambiguous.” Id. We reiterate, moreover, that when the

plain meaning of a statute is clear after application of the traditional tools of statutory

interpretation, a court should not “delve into the legislative history of an unambiguous

statute.” Welch, 595 S.W.3d at 624; see also D. Canale & Co. v. Celauro, 765 S.W.2d 736,

738 (Tenn. 1989) (“Where there is no ambiguity in the language of an act, comments of

legislators, or even sponsors of the legislation, before its passage are not effective to change

the clear meaning of the language of the act.”).

Even if the legislature’s primary objective in passing the MVHO Repeal Act was to

eliminate penalties for the conduct of driving after being declared an MVHO, it does not

necessarily follow that the legislature intended to eliminate penalties even for individuals

like Deberry who violated the MVHO Act while it was still in effect. After all, “no

legislation pursues its purposes at all costs.” Rodriguez v. United States, 480 U.S. 522,

525–26 (1987) (per curiam). Applying new statutes—even ameliorative ones—to conduct

that occurred before the statute’s enactment implicates countervailing interests such as

fairness and predictability. One of the reasons States departed from the common-law

doctrine of abatement was that it led to disparate punishment for “similarly situated

defendants . . . solely because the proceedings of one [case] had moved more quickly and

had become final before the change in the law.” Glisson, 782 N.E.2d at 254. And allowing

offenders to escape punishment for conduct that was a crime at the time it occurred could

undermine respect for the rule of law and weaken its deterrent effect. See Tenn. Code Ann.

§ 40-35-102(3) (2019) (“Punishment shall be imposed to prevent crime and promote

respect for the law . . . .”).

Deciding whether and to what extent these and other “competing values” should be

“sacrificed to the achievement of a particular objective” is the job of the legislature.

Rodriguez, 480 U.S. at 526. Tennessee’s legislature already balanced those interests for

criminal laws generally when it enacted the criminal savings statute. “[T]he whole point”

of a savings statute “is to provide a stable set of background principles that will promote

effective communication between [the legislature] and the courts.” Dorsey v. United States,

567 U.S. 260, 297 (2012) (Scalia, J., dissenting). A court therefore must apply those

background principles absent a “clear showing” that the legislature has deviated from them.

Id.

Nothing in the MVHO Repeal Act indicates that the legislature intended to deviate

from the general rules in the criminal savings statute. Accordingly, those default rules

apply. The MVHO Repeal Act “repeal[ed]” the MVHO Act and did not “provide[] for a

lesser penalty,” so it was appropriate for the State to prosecute Deberry under the MVHO

Act, which was in effect when he committed his offense. Tenn. Code Ann. § 39-11-112.

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Had the legislature desired a different result, it could have specified that the MVHO Repeal

Act abated pending prosecutions for offenses committed before the Act’s effective date.

3.

Despite having pressed and prevailed on the argument that the phrase “lesser

penalty” includes no penalty, Deberry has abandoned that position in this Court and now

argues instead that the MVHO Repeal Act “provides for a lesser penalty” because it fails

to eliminate administrative fees related to license reinstatement. According to Deberry,

individuals convicted of driving after being declared an MVHO must pay a total of $153

in administrative fees to regain their driver’s licenses. He posits that those administrative

fees constitute “lesser penalt[ies]” within the meaning of the criminal savings statute. This

argument fails for two reasons.

First, the MVHO Repeal Act does not “provide for” administrative fees related to

license reinstatement. The Act is instead entirely silent on the matter. As defense counsel

conceded at oral argument, those fees existed before the legislature enacted the MVHO

Repeal Act. Therefore, we cannot say that the MVHO Repeal Act either explicitly or

implicitly makes these fees a “stipulation or condition” of the license reinstatement process.

Provide, American Heritage Dictionary of the English Language 1053 (1969); see also

Provide, 12 The Oxford English Dictionary 713 (2d ed. 1989) (“To make it, or lay it down

as, a provision or arrangement; to stipulate that.”). Rather, those fees were “provided” by

pre-existing statutes and regulations. See Tenn. Code Ann. § 55-12-114(c) (2020) ($100

restoration fee); id. § 55-12-129(a) (2020) ($50 financial responsibility fee); id. § 55-50-

303(b)(3) (2020) ($3 filing fee); Tenn. Comp. R. & Regs. 1340-01-13-.21(1)(a) (requiring

proof of “eligibility to reapply; compliance with Financial Responsibility Law (when

applicable); and payment of all reinstatement fines”).

Second, the administrative fees at issue are not “penalties.” It is true that some

penalties, such as fines, are pecuniary in nature. Kokesh, 137 S. Ct. at 1642; City of

Chattanooga v. Davis, 54 S.W.3d 248, 259 (Tenn. 2001) (noting that a “fine” is “a payment

to a sovereign as punishment for some offense” (quoting Browning–Ferris Indus. of Vt. v.

Kelco Disposal, 492 U.S. 257, 265 (1989))). Indeed, the trial court initially imposed a

$1,500 fine in this very case. But, unlike fines, administrative fees related to license

reinstatement are not “punishment[s] imposed by statute as a consequence of the

commission of an offense.” Penalty, Black’s Law Dictionary 1290 (4th rev. ed. 1968).

These administrative fees are triggered only when an MVHO voluntarily applies for license

reinstatement.

A statute is generally “considered nonpenal if it imposes a disability, not to punish,

but to accomplish some other legitimate governmental purpose.” Trop v. Dulles, 356 U.S.

86, 96 (1958). Here, a “legitimate governmental purpose” of charging fees in connection

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with license reinstatement is to offset the administrative costs of enforcing motor vehicle

laws. See Tenn. Code Ann. § 55-12-129(e) (2020) (“Fees paid to the department of safety

pursuant to this title shall be expendable receipts to be used by the commissioner of safety

toward the cost of administering this title.”). We therefore hold that administrative fees

related to license reinstatement are not “lesser penalties” for the offense of driving after

being declared an MVHO. Tenn. Code Ann. § 39-11-112.

Deberry invokes the rule of lenity, but that rule is not implicated unless there is “a

‘grievous ambiguity or uncertainty’ in the statute.” Welch, 595 S.W.3d at 623 n.4 (quoting

Huddleston, 415 U.S. at 831). Deberry does not identify any language in the MVHO Repeal

Act or criminal savings statute that is “grievous[ly] ambigu[ous] or uncertain[].” Id. Nor

could he. As explained above, under the plain and ordinary meaning of the statutes at issue,

the MVHO Repeal Act does not “provide[] for a lesser penalty,” either by repealing the

offense of driving as an MVHO or by failing to eliminate preexisting fees imposed during

the license reinstatement process. Tenn. Code Ann. § 39-11-112.

* * *

We hold that a statute that repeals a criminal offense does not “provide[] for a lesser

penalty” within the meaning of the criminal savings statute and that a person who commits

an offense that is later repealed “shall be prosecuted”—i.e., convicted and sentenced—

“under the act or statute in effect” when the offense was committed unless the legislature

says otherwise. Id. We also hold that the MVHO Repeal Act does not “provide[] for a lesser

penalty” by failing to eliminate preexisting administrative fees related to license

reinstatement. Id. The trial court abused its discretion when it granted Deberry’s Rule 35

motion based on an erroneous interpretation of the criminal savings statute. We therefore

reverse the judgment of the Court of Criminal Appeals, vacate the trial court’s amended

judgment as to count one, and reinstate the trial court’s original judgment imposing

Deberry’s split-confinement sentence and fine.4 Because Deberry is indigent, the costs of

this appeal are taxed to the State of Tennessee.

______________________________

SARAH K. CAMPBELL, JUSTICE

4

In the alternative, Deberry asks this Court to reinstate his fine but not his five-year sentence of

split-confinement. We decline that invitation. The criminal savings statute does not give us authority to

pick and choose which parts of a repealed statute to enforce.

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