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his license was revoked after having been declared an MVHO.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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