State of Tennessee v. Curtis Burnside

05/07/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Brief January 20, 2021

STATE OF TENNESSEE v. CURTIS BURNSIDE

Appeal from the Criminal Court for Knox County
No. 110760 Bob R. McGee, Judge

No. E2019-02273-CCA-R3-CD
_____________________________

A Knox County jury convicted the Defendant, Curtis Burnside, of thirty-three counts of
theft, twelve counts of burglary, one count of criminal impersonation, and one count of
simple possession of a controlled substance. The trial court imposed partial consecutive
sentencing for an effective sentence of twenty-four years. On appeal, the Defendant
contends that: (1) the evidence is insufficient to support his burglary convictions; (2) the
State’s theory on the “aggregated counts” of the indictment was improper; and (3) the trial
court sentenced him under an outdated “theft grading scheme.” After review, we affirm
the Defendant’s convictions but reverse a number of his sentences. We conclude that the
Defendant was sentenced on certain counts pursuant to an outdated version of the theft
grading statute, Tennessee Code Annotated section 39-14-105(a), and should be
resentenced on these counts pursuant to the updated version effective January 1, 2017. We
affirm the convictions in all counts but remand to the trial court for resentencing consistent
with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in Part, Reversed in Part, and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA MCGEE
OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Mike Whalen, Knoxville, Tennessee, for the appellant, Curtis Burnside.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; Ta Kisha M. Fitzgerald and
Philip H. Morton, Assistant District Attorneys General, for the appellee, State of
Tennessee.

OPINION
I. Facts
 This case arises from allegations that the Defendant committed numerous thefts
from multiple Knoxville-area clothing, grocery, and convenience stores in 2016. The
Defendant was arrested in November of 2016 with half a gram of cocaine on his person.
For these offenses, a Knox County grand jury indicted the Defendant in a fifty-one-count
indictment: sixteen counts of theft of property valued less than $500, ten counts of theft of
property valued between $500 and $1,000, seven counts of theft of property valued
between $1,000 and $10,000, twelve counts of burglary, one count of criminal
impersonation, and one count of simple possession of cocaine. The grand jury also indicted
the Defendant for four counts which were later dismissed: two counts of theft of property
valued between $1,000 and $10,000; one count of theft of property valued between $500
and $1,000; and one count of theft of property valued between $10,000 and $60,000.

Prior to trial, the State offered a basis for aggregation of some of the Defendant’s
thefts into one count, pursuant to Tennessee Code Annotated section 39-14-105 (providing
that “The monetary value of property from multiple criminal acts which are charged in a
single count of theft of property shall be aggregated to establish value . . . ”), which the
State argued was appropriate because the Defendant’s crimes were part of a common
scheme or plan to fund the Defendant’s drug habit. The trial court responded that the
crimes could not be consolidated simply because the Defendant had committed the same
or similar crimes repeatedly. The State alleged that the counts it sought to aggregate had
the same victim; the trial court maintained that the same victim did not establish an
enterprise for the purposes of aggregation. After hearing further argument, the trial court
concluded that, if a common element existed, such as the Defendant’s drug habit, in each
of the counts sufficient to establish his enterprise of paying for drugs by way of selling
stolen merchandise, aggregating the counts was proper. The Defendant objected to the trial
court’s determination that a common scheme or plan was present and its resulting decision
to permit aggregation of the charges.

A. Trial

At the Defendant’s trial on these charges, the following evidence was presented:
Lee Gentry testified that he was employed by Kohl’s Department Store in Knoxville as a
loss prevention supervisor; he had been previously employed in the same capacity at a
Walmart, also in Knoxville. On August 20, 2016, Mr. Gentry observed the Defendant
come to Kohl’s. The Defendant arrived in the store’s parking lot in a blue Elantra, and Mr.
Gentry recognized him but had never seen the Defendant in person before. Mr. Gentry
began tracking the Defendant on the store’s camera system and began recording the
surveillance video at that point. The Defendant and another individual entered the store.
Mr. Gentry observed the Defendant put several items in a shopping cart and then obtain a
merchandise bag from behind an unmanned cash register. The Defendant placed his items
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in the merchandise bag and proceeded to exit the store. When Mr. Gentry approached the
Defendant, the Defendant dropped the bag on the sidewalk and ran to his vehicle. The total
amount of the merchandise was approximately $350.

Ofelia Wilson testified that she was employed as the deli manager at Ingles Market
and was working a shift on August 6, 2016. The Defendant entered the market at around
10:30 p.m., and Ms. Wilson observed him fill a grocery cart with beer, packed neatly and
tightly, and exit the store without paying for the beer. Ms. Wilson identified the Defendant
on a surveillance video recording. She recalled that the Defendant was accompanied by
another man who tried to distract Ms. Wilson while the Defendant was taking the beer.
Ms. Wilson called for her manager and ran after the Defendant into the parking lot, where
he was loading the beer into a waiting vehicle. Ms. Wilson recorded the tag number from
the vehicle’s license plate.

Sandra Gazikas testified that she was working at Walgreens on July 4, 2016, as a
shift leader and observed the Defendant inside the store. She helped the Defendant find an
item and had a “feeling” about him. Ms. Gazikas walked away from the Defendant to help
another customer and when she returned, she observed the Defendant walking out of the
store with a set of speakers, valued at $29.99, up his shirt. Ms. Gazikas followed the
Defendant to the parking lot, where she observed him getting into a waiting vehicle. Ms.
Gazikas recorded the tag number from the vehicle’s license plate.

Kimberly Elsass, an EZ-Stop Food Mart employee, testified that the Defendant was
recorded on surveillance video taking twenty-four cartons of cigarettes, valued at $1,224;
Luke Osborne, employed by Kroger, observed the Defendant take two popcorn machines,
worth a total of $92.97; Brandi Millsaps, also employed by Kroger as a loss prevention
officer, after being contacted by store management about theft incidents, reviewed
surveillance of the Defendant taking nine cartons of cigarettes from her store on October
25, 2016, valued at $450. Ms. Millsaps also reviewed video surveillance of the Defendant
in the same Kroger store on November 6, 2016, during which time he took nineteen items,
including multiple appliances valued at $617.00. Ms. Millsaps reviewed surveillance
footage from a third day, November 7, 2016, wherein she observed the Defendant take
approximately $250 worth of items from the store.

Michael Kilgore, a Kroger employee working in the loss prevention department,
reviewed surveillance footage from a Knoxville-area Kroger from September and October
of 2016 at store management’s request. He identified the Defendant taking nineteen
cartons of cigarettes, valued at $1,063.60, in September and testified that another similar
theft occurred in October when the Defendant took eighteen cartons valued at $1,036.80.

Mel Pierce testified that he was employed by the Knoxville Police Department in
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the property crimes division and investigated multiple complaints by victims of the
Defendant’s thefts. The first victim, Biral Patel, provided video surveillance footage from
his store which showed the Defendant taking items from Mr. Patel’s store. Officer Pierce
also investigated the complaint from Kohl’s and Mr. Gentry. Both Mr. Patel and Mr.
Gentry identified the Defendant in photographic lineups as the man they saw stealing from
their businesses. Officer Pierce investigated a theft from an Exxon gas station which
occurred on October 31, 2016, when the Defendant reportedly entered the gas station with
three other individuals and took twenty-four cartons of cigarettes. Officer Pierce also
investigated a theft from a Walmart that occurred on November 2, 2016, where a loss
prevention officer reported that the Defendant and another individual had taken a 55-inch
television from the electronics section, exiting the store through a fire door. Officer Pierce
recalled that, for this incident at Walmart, the Defendant was charged with theft by
shoplifting and also with burglary, a charge at issue on appeal, because the Defendant “was
not allowed to be on the property, and he entered the property with the intent to commit a
crime.”

Outside the presence of the jury, the issue of the grading of theft for punishment
purposes based on the value of items stolen, was addressed by both parties with the trial
court. The State submitted that a new theft grading statute had been passed by the
legislature in 2016 but did not go into effect until January 1, 2017. The State cited State v.
Keese, on appeal to our supreme court at the time, wherein the defendant benefitted at trial
from a new version of the statute not in effect at the time of sentencing. The parties agreed
that the ultimate question came down to whether the grading of a theft conviction was an
element of the crime or a consideration for sentencing. The trial court stated that the issue
would be revisited.

The State presented multiple witnesses who were either employees of or loss
prevention officers at businesses in the Knoxville area. They each testified to some account
of the Defendant committing thefts from their businesses in 2016. The Defendant stole
beer, electronics, appliances, Nike shoes, and clothing.

Related to the Defendant’s first issue on appeal that the evidence is insufficient to
support his burglary conviction because of a lack of notice, the State presented several
witnesses employed by Walmart. Thomas Fugate testified that he was one of three asset
protection specialists in Knox County employed by Walmart in the asset protection
department to prevent shoplifting. He testified that Walmart has a form called a “trespass
notice.” A trespass notice is issued to an individual, based on the circumstances of the
individual “disrupting [Walmart] business or [having] a continuous history of theft from
the business,” and informing the individual that they will be “Trespassed,” or no longer
allowed to enter Walmart property. Mr. Fugate testified that the Defendant had previously
been “trespassed” from a Walmart on April 16, 2016. He identified the “notice” of trespass
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with Mr. Fugate’s signature on it with a “notification of restriction from property,” of
which he personally informed the Defendant. Mr. Fugate recalled that when he informed
the Defendant of his restriction from the property, he did so by saying that the Defendant
was “no longer allowed back on any Walmart property worldwide for the rest of [his] life
. . . .” Reading aloud from the notice of restriction, Mr. Fugate noted the following
language: “The document constitutes formal notice and warning that you are not allowed
on Walmart property . . .” This restriction on entry includes but is not limited to all
Walmart retail locations.”

Mr. Fugate went on to read from the form, “Should you elect to ignore this notice
and enter Walmart property, Walmart may contact law enforcement and request that you
be charged with criminal trespass.” Mr. Fugate testified that he personally informed the
Defendant of the restriction at a time when the Defendant was handcuffed and so could not
sign his name. Mr. Fugate identified his own signature on the form as well as the signature
of Knoxville Police Officer Turner.

Mr. Fugate identified an audio recording, obtained from the Knoxville Police
Department from a police cruiser camera, of him and a co-worker, Matthew Shamrock,
orally informing the Defendant of the restriction of his entry. Mr. Fugate identified Mr.
Shamrock’s voice, telling the Defendant that if he returned to Walmart and committed
another theft, it would be upgraded to a burglary charge as opposed to a misdemeanor theft
or criminal trespass. Mr. Fugate testified that the restriction applied to all businesses and
property owned by Walmart, including Sam’s Club and Murphy Oil, as well as any parking
lots. The restriction remained in effect when the Defendant entered Walmart stores in
October and November of 2016.

On cross-examination, Mr. Fugate was shown a different version of the “notice”
form, which he opined was possibly an older version but similar to the current version of
the notice of restriction used by his office. He identified additional language on the older
form, which warned of the potential upgrade of a theft charge to a burglary charge. Mr.
Fugate agreed that this particular warning was not on the form he provided to the Defendant
in 2016. He maintained that oral notice of the possible upgrade to burglary had been given
to the Defendant and was audible on the police cruiser’s recording.

On redirect-examination, Mr. Fugate clarified that, on April 16, 2016, the Defendant
was charged with misdemeanor theft and, as a result, was placed on the “trespass list.”
Thereafter, if the Defendant was seen on Walmart property, he would be committing
criminal trespass. Mr. Fugate reiterated that the Defendant was told, on April 16, that if he
returned to Walmart and committed another theft, he would be charged with burglary.

On recross-examination, Mr. Fugate agreed that the word “burglary” had not been
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used by Mr. Shamrock when informing the Defendant of an upgrade to his charges; Mr.
Fugate agreed that Mr. Shamrock used the word “felony.” He agreed that the form itself
did not address the additional issue of what would happen if the Defendant stole from
Walmart after being notified that he was not allowed on the property; the form only
addressed the restriction related to him physically returning to the property.

Steve Smartt, employed as an asset protection associate at Walmart, testified that he
was working the night of November 20, 2016, and, after hearing the fire alarm activate, he
reviewed surveillance footage and observed the Defendant enter the back of the store and
take a television off the wall, valued at $748, before exiting the store with it. The Defendant
was then recorded getting into a waiting vehicle. Mr. Smartt testified that, on November
20, the Defendant did not have permission to enter the store, having been restricted from
all Walmart properties at that time by Mr. Shamrock. Mr. Smartt also testified about an
incident of theft on October 24, 2016, from another Walmart location where the Defendant
stole another television, valued at $678.

On cross-examination, Mr. Smartt identified an older version of Walmart’s
“trespass forms.” He agreed that the new version of the notice of restriction form did not
explicitly state that, if the Defendant “trespassed” and committed another theft, he could
be charged with burglary. Mr. Smartt recalled that the store returned to using the older
version with the burglary warning sometime in 2017.

The State presented several more Walmart employees who testified to more thefts
committed by the Defendant in 2016. The incidents were almost identical in nature as
those detailed above in that the Defendant often used the fire exit to leave the store with
the stolen merchandise.

Based on this evidence, the jury convicted the Defendant of sixteen counts of theft
of property valued less than $500, ten counts of theft of property valued between $500 and
$1,000, seven counts of theft of property valued between $1,000 and $10,000, twelve
counts of burglary, one count of criminal impersonation, and one count of simple
possession of cocaine.
B. Sentencing

In 2018, the trial court held a sentencing hearing over a two-day period. Tonya
Payne testified that she was employed by Walmart and was present to discuss the financial
impact of the Defendant’s crimes on the business. She described the steps that Knoxville-
area Walmarts were having to take in response to their “huge amounts” of theft incidents.
Lee Gentry, a Kohl’s employee, testified to similar effects that theft was having on Kohl’s
“bottom line” and that the theft affected employees’ year-end bonuses. Debbie Cox, an
employee at the Knox County Sheriff’s Office, testified that, while in the department’s
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custody, the Defendant had received ten disciplinary violations for incidents of lies and
deception, damage to the facility, and abuse of privilege, among others. At the conclusion
of the State’s proof, the State submitted as evidence the Defendant’s pre-sentence report,
copies of his prior convictions, a victim impact statement, and the disciplinary write-ups
from the Defendant’s incarceration.

Following what it called “extensive” consideration of the parties’ arguments related
to the Defendant’s sentence, specifically the imposition of consecutive sentencing, the trial
court sentenced the Defendant for his sixteen misdemeanor theft convictions to eleven
months and twenty-nine days for each conviction. For his simple possession conviction,
the trial court imposed a sentence of eleven months and twenty-nine days. For the criminal
impersonation conviction, the trial court imposed a sentence of sixty days in jail. For the
Defendant’s ten convictions for felony theft of property valued between $500 and $1,000,
the trial court imposed six-year sentences for each. For the Defendant’s additional seven
convictions for felony theft of property valued between $1,000 and $10,000 the trial court
imposed twelve-year sentences for each. For the Defendant’s twelve burglary convictions,
the trial court imposed twelve-year sentences for each. The trial court noted that the
Defendant would be sentenced as a career offender.

Turning to consecutive sentencing, the trial court again noted its extensive
consideration of the arguments and the evidence. The trial court found that the Defendant
had a “gross[ly] extensive criminal history and that he had “devoted his life to crime and
to [the] victimization of other people.” The trial court acknowledged that while the
Defendant’s crimes were non-violent property crimes, consecutive sentencing was still
justified. The trial court also acknowledged that the Defendant had not committed “old-
fashioned” burglary by breaking and entering into an inhabited dwelling, but instead had
committed a different type of offense with a lesser threat of harm. For that reason, the trial
court imposed consecutive sentences for two of the twelve burglary counts and ordered the
remaining sentences for all additional counts to run concurrently for a total effective
sentence of twenty-four years to be served at 60%. It is from these judgments that the
Defendant now appeals.

II. Analysis

On appeal, the Defendant contends that he was not provided proper notice by
Walmart that he could be charged with burglary if he entered store property. He contends
that the April 16 oral warning issued by Mr. Fugate and Mr. Shamrock was not “meaningful
notice one would hope might convert a misdemeanor to a felony.” He next contends that
allowing the State to “aggregate” the counts in his indictment was error because the State
put forth a new theory on aggregation during its closing argument. Finally, the Defendant
contends that the trial court erroneously sentenced him pursuant to an outdated theft
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grading scheme, rather than the one in effect at the time of sentencing.

A. Notice

The Defendant contends that the notice provided to him by Walmart of the possible
upgrade of his charge from theft or criminal trespass to felony burglary was insufficient.
He contends that the possibility was not listed on the notice of restriction provided to him,
and that the oral notice given by Mr. Shamrock was unclear. The Defendant argues that,
without sufficient notice, he could not have known that his actions would constitute
burglary. The State responds that the notice plainly informed the Defendant that he was
barred from Walmart property. His subsequent entry onto Walmart’s property and theft
from the store was therefore burglary pursuant to the plain language of the burglary statute.
We agree with the State.

Relevant here, “A person commits burglary who, without the effective consent of
the property owner: (3) Enters a building and commits or attempts to commit a felony, theft
or assault[.]” T.C.A. § 39-14-402(a)(3) (2019). Tennessee Code Annotated section 39-
11-106(a)(ii) defines “effective consent” as “assent in fact, whether express or apparent.”
“‘Assent’ has been defined as an ‘agreement, approval, or permission; esp., verbal or
nonverbal conduct reasonably interpreted as willingness.’” State v. Welch, 595 S.W.3d
615, 622 (Tenn. 2020) (quoting Black’s Law Dictionary 115-16 (10th ed. 2014)). In Welch,
our supreme court held that a no-trespass form served upon the defendant by Walmart,
similar to the one in this case, made it clear to the defendant that she did not have effective
consent to enter or remain on Walmart property. Id. at 623.

We conclude that the same is true here: the Defendant was sufficiently notified, by
the form provided and from an oral warning from store employees, that he no longer had
the effective consent of Walmart to enter its property. From the plain language of the
burglary statute, when the Defendant no longer had Walmart’s consent and yet chose to
enter its property and commit a theft therein, the Defendant committed a burglary. The
Defendant is not entitled to relief on this issue.

B. Aggregation

The Defendant contends that he was denied his right to a fair trial because the State
was allowed to change, from the start of trial to its closing argument, its underlying theory
for aggregating some of his theft charges. He contends that the State initially argued that
the Defendant’s “common scheme, purpose, intent, or enterprise” was a drug habit and
then argued during closing that the Defendant was not a drug addict but a professional
thief. This, the Defendant argues, deprived him of the opportunity to refute the State’s
“professional thief” theory. The State responds that its theory of aggregation did not
8
change at closing argument and, thus, did not deprive him of the opportunity to refute the
basis for aggregation. We agree with the State.

We are required here to consider the construction and application of the theft
aggregation provision, a portion of the grading of theft statute in Tennessee Code
Annotated section 39-14-105. Statutory construction presents a question of law, which we
review de novo with no presumption of correctness accorded the rulings below. State v.
Henderson, 531 S.W.3d 687, 692 (Tenn. 2017) (citing State v. Springer, 406 S.W.3d 526,
532-33 (Tenn. 2013)).

Tennessee Code Annotated section 39-14-105(b) provides:

(1) In a prosecution for theft of property, . . . the state may
charge multiple criminal acts committed against one (1) or
more victims as a single count if the criminal acts arise from a
common scheme, purpose, intent or enterprise.

(2) The monetary value of property from multiple criminal acts
which are charged in a single count of theft of property shall
be aggregated to establish value under this section.

T.C.A. § 39-14-105(b). “The point of aggregating multiple individual thefts into a single
count is to charge the defendant with a single felony offense as opposed to multiple
misdemeanor thefts, or to raise lower grade multiple felony thefts to a single higher grade
felony charge.” State v. Jones, 589 S.W.3d 747, 756-57 (Tenn. 2019). Jones clarified:

The identity and location of the owner(s) of the property is not relevant.
Simultaneous possession of the property by the suspect is not required.
Rather, if the evidence establishes that the separate thefts meet any of the
criteria actually and expressly set forth in the statute, then the State may
aggregate the thefts into a single charge.

Id. at 759.

The Defendant contends that the State changed its “theory” of aggregation during
its closing argument: the State initially argued to the trial court that the charges should be
aggregated because they supported the Defendant’s drug habit; then, he contends, during
closing argument, it presented to the jury a picture of the Defendant’s life as a professional
thief.

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 We would first note that the question of aggregation is a determination reached by
the trial court, not the jury. The trial court determined, prior to trial, that the State was
permitted to aggregate the separate thefts because the convictions shared a common
scheme or plan to support the Defendant’s drug habit. Thus, any argument made during
closing had no bearing on the State’s basis for aggregation.

Nevertheless, we conclude that the State properly put forth a theory for aggregation,
based on the Defendant’s “common scheme, purpose, intent or enterprise” of stealing
merchandise from businesses which he would later resell in support of his drug habit. The
Defendant is not entitled to relief on this issue.

C. Sentencing

The Defendant lastly contends that the trial court erred when it sentenced him
pursuant to an outdated theft grading scheme that was not in effect at the time of the
sentencing hearing. Citing State v. Menke, 590 S.W.3d 455 (Tenn. 2019), he argues that
the amended theft grading scheme should apply to his convictions. The State responds that
the Defendant “at no point” argued this contention to the trial court, and, having failed to
raise the issue, is thus entitled only to plain error review of this issue, which the State argues
he cannot establish. We agree with the Defendant.

We disagree with the State that the Defendant is only entitled to plain error review
because he failed to make an argument to the trial court that he was entitled to the
application of the criminal savings statute. The Defendant raised the issue with the trial
court, and argument was made by both parties. The State cited Menke and noted that the
decision was on appeal to our supreme court at the time. Therefore, the issue is properly
before us on appeal.

A decision in Menke has since been reached and affords the Defendant relief. The
Menke court addressed the issue of the applicability of the amended theft grading statute,
known as the Public Safety Act of 2016, found at Tennessee Code Annotated section 39-
14-104(a), which took effect in January of 2017. See Menke, 590 S.W.3d at 464-65. The
amendment to this section provided the following updated theft grading scheme:

(a) Theft of property or services is:
(b)
(1) A Class A misdemeanor if the value of the property or services obtained
is one thousand dollars ($1,000) or less;

(2) A Class E felony if the value of the property or services obtained is more
than one thousand dollars ($1,000) but less than two thousand five hundred
10
 dollars ($2,500);

(3) A Class D felony if the value of the property or services obtained is two
thousand five hundred dollars ($2,500) or more but less than ten thousand
dollars ($10,000)[.]

Menke, 590 S.W.3d at 465 (citing 2016 Tenn. Pub. Acts, ch. 906, sec. 5.7.)

The defendant in Menke, as here, committed theft prior to the amendments but was
sentenced after the effective date. Id. at 465. Our supreme court explained that “[a]s a
general rule, ‘a criminal offender must be sentenced pursuant to the statute in effect at the
time of the offense.’” Id. at 466 (citations omitted). Our legislature has enacted a Criminal
Savings Statute, which requires courts to apply a subsequent statute to a defendant’s
sentencing if the subsequent statute provides for a lesser penalty. The Menke court went
on to explain the effect of the savings statute:

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.

Id. at 466 (citing T.C.A. § 39-11-112; State v. Cauthern, 967 S.W.2d 726, 747 (Tenn. 1998)
(emphasis in original). Menke concluded definitively that the Criminal Savings Statute
applies to the amended theft grading statute. Id. at 468. The defendant in Menke, however,
was not entitled to relief because her sentence for the Class D felony conviction, eleven
months and twenty-nine days, was also a proper sentence for her adjusted conviction of a
Class A misdemeanor. Therefore, her sentence was proper. Id. at 470.

Here, the Defendant committed his offenses in 2016, prior to the amendments to the
Public Safety Act taking effect in January of 2017, but he was sentenced in 2018.
Therefore, our court’s conclusion in Menke applies here: the Defendant was entitled to any
benefit bestowed upon his convictions by the Criminal Savings Statute. It follows that any
sentence the Defendant received for a theft conviction, which would be adjusted by the
2017 amendment, should be reviewed, and a new sentence in line with the updated scheme
should be imposed.

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 The Defendant was convicted of thirty-three counts of theft, detailed as follows:

Conviction Class of Theft pre- Class of Theft Counts Affected by
2016 amendment post-2016 amendment
amendment
Theft of property Class A Class A 1-8, 10, 17, 18, 27, 29,
valued at less than misdemeanor misdemeanor 34, 36, 37 (none
$500 affected by amendment)
Theft of property Class E felony Class A 11, 14, 16, 20, 23, 25,
valued between misdemeanor 31, 35, 39, 44
$500 and $1,000
Theft of property Class D felony Class E felony if 9, 12, 32, 42, 48, 49, 50
valued between value < $2,500
$1,000 and $10,000 Class D felony if
value > $2,500
(up to $10,000)

The above chart shows that some but not all of the Defendant’s felony theft
convictions were reclassified as to their value, and he will have to be resentenced on those
convictions accordingly. Therefore, we remand the Defendant’s case to the trial court for
a new sentencing hearing with instructions to the trial court to impose new sentences in
alignment with the amended theft grading statute.

III. Conclusion

In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgments in part, reverse the trial court’s judgments in part, and remand the
Defendant’s case for a new sentencing hearing consistent with this opinion.

_________________________________
ROBERT W. WEDEMEYER, JUDGE

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