State v. Pearson, 858 S.W.2d 879

• Decision Date: 14 June 1993
• Docket Number: No. 03-S-01-9207-CR-00062,03-S-01-9207-CR-00062
• Citation: 858 S.W.2d 879
• Parties: STATE of Tennessee, Appellee/Appellant, v. David Patrick PEARSON, Appellant/Appellee.
• Court: Tennessee Supreme Court

Page 879

858 S.W.2d 879

STATE of Tennessee, Appellee/Appellant, v. David Patrick PEARSON, Appellant/Appellee.

No. 03-S-01-9207-CR-00062

Supreme Court of Tennessee,

at Knoxville.

June 14, 1993.

Kenneth F. Irvine, Jr., Ritchie, Fels & Dillard, P.C., Knoxville, for appellant/appellee, David Patrick Pearson.

Charles W. Burson, Atty. Gen. & Reporter and Rebecca L. Gundt, Asst. Atty. Gen., Nashville, for appellee/appellant, State.

OPINION

ANDERSON, Justice.

We granted this application to resolve questions which arose out of the sentencing of the defendant, David Patrick Pearson, after he pled guilty to thirteen criminal offenses. The first was whether the trial court's application of an enhancement factor--created by the 1989 Sentencing Act--to a criminal offense occurring before the Act's effective date violated the ex post facto prohibition of the United States and Tennessee Constitutions. The second issue raised was whether the Court of Criminal Appeals' sua sponte application of an enhancement factor to the sentence, which was not found by the trial court, violated the defendant's right to procedural due process by depriving him of notice and an opportunity to be heard. The final question was whether the Court of Criminal Appeals erred by dismissing the defendant's misdemeanor conviction on the grounds that the trial court lacked subject matter jurisdiction because the statute of limitations had expired.

We have decided that the prohibition against ex post facto laws in both the United States and the Tennessee Constitutions is satisfied by determining whether the defendant will be disadvantaged by application of the 1989 Sentencing Act. We conclude that a trial court imposing a sentence after the effective date of the 1989 statute for a crime committed before that date must calculate the appropriate sentence under both the 1982 sentencing statute and the 1989 Criminal Sentencing Reform Act, and then impose the lesser sentence of the two. We, therefore, remand the conviction of first-degree burglary to the trial court for that purpose.

We have also determined that additional notice and a further opportunity to be heard were not required in this case, where the Court of Criminal Appeals determined without remand that the trial record supports an enhancement factor not found by the trial court at the sentencing hearing.

Finally, we conclude that the statute of limitations may be waived by a defendant where the waiver is knowing and voluntary. Here, there is no evidence in the record that the defendant was made aware of the issue and, therefore, there could be no knowing and voluntary waiver. Accordingly, we affirm the judgment of the Court of Criminal Appeals dismissing the conviction for the 1989 assault on the separate grounds stated.

BACKGROUND

The defendant, David Patrick Pearson, pled guilty on September 26, 1990, to eleven counts of aggravated burglary, aggravated rape, assault, and theft which occurred in 1990. On November 15, 1990, a sentencing hearing was held for these eleven offenses. At that time, the State filed an information charging the defendant with two additional offenses--first-degree burglary and assault--which occurred on March 31, 1989, to which the defendant also pled guilty. At the sentencing hearing, the trial court applied to the March 1989 convictions an enhancement factor which was created by the 1989 Criminal Sentencing Reform Act--Tenn.Code Ann. § 40-35-114(11). The Act, however, did not take effect until November 1, 1989. The enhancement factor applied provided that "[d]uring the commission of the felony, the defendant willfully inflicted bodily injury upon another person." The trial court then sentenced the defendant to six years for the first-degree burglary, which was the maximum sentence under the 1989 Act. In contrast, the 1982 Act provided a sentence range of a minimum of five years and a maximum of fifteen years. The trial court also sentenced the defendant to eleven months and twenty-nine days for the assault. The aggregate sentence for all offenses was eighty years.

On appeal, a majority of the Court of Criminal Appeals panel, in a split opinion, found that application of an enhancement factor created by the 1989 Act to an offense occurring before the effective date of the statute, violates the ex post facto prohibition of the United States and Tennessee Constitutions. The writer of the opinion found no violation, but for other reasons reduced the six-year sentence for first-degree burglary to five years. Of the two-judge majority who found a violation, one thought a sentence reduction for first-degree burglary from six to five years an appropriate remedy, while the other would have further reduced the sentence to four years.

With respect to the 1990 offenses, the Court of Criminal Appeals also held that the trial court erred in applying the mitigating factor of "no prior conviction." Reviewing the record de novo, the appellate court applied to all eleven 1990 offenses the enhancement factor found in the 1989 Act--Tenn.Code Ann. § 40-35-114(1)--which provides that "[t]he defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range" ¹.

Finally, the Court of Criminal Appeals dismissed the defendant's conviction on the 1989 assault charge, holding that because the misdemeanor offense occurred more than nineteen months before the information was filed and the statute of limitations for misdemeanors is twelve months, the trial court did not have subject matter jurisdiction. The effect of the adjustments made by the Court of Criminal Appeals reduced the aggregate sentence for all offenses from eighty to seventy-seven years. Both the State and the defendant have appealed.

EX POST FACTO

Only nine years after the adoption of the U.S. Constitution, the Supreme Court considered the meaning of the term "ex post facto" as used in Article I, § 10, cl. 1, of the U.S. Constitution, which provides that "[n]o state shall ... pass any ... ex post facto law...." In Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), the Supreme Court concluded that the ex post facto clause prohibits:

1st. Every law that makes an action done before the passing of the law and which was innocent when done, criminal and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment and inflicts a greater punishment, than the law annexed to the crime, when committed.

3 U.S. at 390, 1 L.Ed. 648. Much more recently, the Supreme Court has stated that two critical elements must be present for a law to fall within the prohibition. First, it "must be retrospective, that is, it must apply to events occurring before its enactment"; and second, "it must disadvantage the offender affected by it." Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)).

The Tennessee Constitution's ex post facto prohibition found in Article I, § 11, provides:

That laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made.

The leading case interpreting the prohibition is Miller v. State, 584 S.W.2d 758 (Tenn.1979), in which this Court adopted five broad classifications of ex post facto laws, four of which were derived from Calder, supra. The classifications are as follows:

1. A law which provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent.

2. A law which aggravates a crime or makes it greater than when it was committed.

3. A law that changes punishment or inflicts a greater punishment than the law annexed to the crime when it was committed.

4. A law that changes the rules of evidence and receives (sic) less or different testimony than was required at the time of the commission of the offense in order to convict the offender.

5. Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage.

Miller, 584 S.W.2d at 761.

In Miller, the defendant was tried and sentenced for a crime committed on April 7, 1976, under a death penalty statute which become effective on April 11, 1977. He challenged his conviction and sentence of death by electrocution as a violation of the ex post facto prohibition of the U.S. Constitution. The defendant argued that because the mandatory death penalty contained in the Tennessee statutes at the time the murder was committed was unconstitutional, it could not be enforced; and, therefore, the prior valid statute prescribing only life imprisonment was left in full force and effect. The U.S. Supreme Court had rejected the same argument in a factually identical case, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), holding that an unconstitutional statute is not void from its enactment, and therefore, the proper comparison, for ex post facto purposes, is between the quantum of punishment imposed under the unconstitutional law and the quantum of punishment imposed by the later-enacted provision.

This Court in Miller, however, agreed with the defendant that an unconstitutional law is void from its enactment, and as such, leaves any prior valid statutes in full force and effect. At the time the offense occurred, the only valid, applicable statute prescribed life imprisonment as the maximum punishment. Imposition of the death penalty under the 1977 death penalty statute would have imposed a greater punishment than was possible at the time the offense occurred, and it would have obviously altered the defendant's situation to his disadvantage. As a result, we held that the ex post facto prohibition of the Tennessee...