State v. Price

• Decision Date: 14 August 2018
• Docket Number: No. W2017-00677-CCA-R3-CD,W2017-00677-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. A.B. PRICE, JR. and VICTOR TYRONE SIMS
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. A.B. PRICE, JR. and VICTOR TYRONE SIMS¹

No. W2017-00677-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

January 3, 2018 Session

August 14, 2018

Appeal from the Circuit Court for Henry County

No. 15680

Donald E. Parish, Judge

This consolidated appeal comes to us following the passage of the Public Safety Act ("the PSA"), which, as relevant here, see Tenn. Code Ann. §§ 40-28-301,-306, changed how non-criminal or "technical" violations of probation are handled in Tennessee. These provisions require the Tennessee Department of Probation and Parole ("the department") to develop, among other things, a single system of graduated sanctions for technical violations of community supervision and an administrative review process for objections by the probationer to imposition of such sanctions. Prior to accepting the Defendants' guilty pleas, the trial court expressed concern regarding the implementation of the PSA, as these consolidated cases were the first in its district to which the graduated sanctions of the PSA would apply. The Defendants then objected to the imposition of the PSA as a mandatory condition of their probation and "request[ed] that the Court find certain of the provisions of T.C.A. § 40-28-301 through § 40-28-306, relative to sentences of probation, to be facially unconstitutional, and, therefore, decline to incorporate them within the judgment." Specifically at issue are the provisions (1) mandating trial courts to include as a condition of probation that the department supervising the individual may impose graduated sanctions for violations of probation; and (2) the extent to which the department's administrative process to review graduated sanctions contested by supervised individuals complies with principles of due process. After a hearing, the trial court issued an extensive order finding these sections of the PSA violated the separation of powers doctrine and principles of due process and equal protection.² It is from this order that the State appeals. For the reasons that follow, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court. THOMAS T. WOODALL, P.J., joined, and filed a separate concurring opinion. ALAN E. GLENN, J., filed a dissenting opinion.

Herbert H. Slatery III, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General; Matthew F. Stowe, District Attorney General; and Paul Hessing, Assistant District Attorney General, for the appellant, State of Tennessee.

Robert Hawley, Paris, Tennessee, for the appellee, A.B. Price, Jr.

J. Neil Thompson, Huntingdon, Tennessee, for the appellee, Victor Tyrone Sims.

OPINION

There is no dispute as to the facts or circumstances that give rise to this appeal. The record shows that when the Defendants initially attempted to enter their guilty pleas, the trial court refused to accept their negotiated plea agreements and "expressed reservations" as to whether the court could accept them because they would be subject to the PSA. The trial court urged the parties to "consider those matters closely" and reset the cases a few weeks for a hearing to be "educated more on those concepts, and . . . create a record on which to make a decision moving forward, realizing that the decisions to be made in these two (2) cases impact not only these two (2) cases, but . . . across the district, and, in fact, the state."³ At the February 10, 2017 hearing, Lisa Wade, a probation officer, testified generally regarding the procedure under the PSA and provided the trial court with probation statistics and various exhibits including the graduated sanctions matrix. The parties also presented extensive arguments on the constitutionality of the PSA, and the trial court took the matter under advisement. On February 16, 2017, the trial court issued its detailed order declaring the relevant portions of the PSA unconstitutional. On March 31, 2017, Price entered a plea of guilty to two counts of sexual battery and an effective sentence of ten years, to be served on supervised probation but not subject to the PSA. On the same day, Sims entered a plea of guilty to three counts of aggravated assault and an effective sentence of eight years, to be served on supervised probation but not subject to the PSA, and following service of one year incarceration.

To the extent that there are any findings of fact determined by the trial court, they are likewise not disputed by the parties. Our attention is therefore devoted to examining the provisions of the PSA that were struck down by the trial court as unconstitutional.On April 27, 2016, the governor signed into law a bill designated by the legislature as the Public Safety Act of 2016 ("the PSA"). At issue in this appeal are the provisions within Title 40, Chapter 28, which mandated the trial court's grant of probation to be contingent upon a newly created system of graduated sanctions for all non-criminal violations of a sentence involving release into the community. Under this system, the violations are subject to an administrative rather than judicial review process. See 2016 Pub. Acts, c. 906. Each provision is outlined in detail below:

To begin, the PSA defines a graduated sanction to include "any of a wide range of non-prison offender accountability measures and programs, including, but not limited to, electronic supervision tools; drug and alcohol testing or monitoring; day or evening reporting centers; rehabilitative interventions such as substance abuse or mental health treatment; reporting requirements to probation and parole officers; community service or work crews; and residential treatment facilities. Tenn. Code Ann. § 40-28-301.

Pursuant to Tennessee Code Annotated Section 40-28-302, all supervised individuals shall be subject to:

(1) Violation revocation proceedings and possible incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant risk to prior victims of the supervised individual or the community at large and cannot be appropriately managed in the community; or

(2) Sanctions other than revocation as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.

Tenn. Code Ann. § 40-28-302. Tennessee Code Annotated section 40-28-303, entitled system of graduated sanctions, provides as follows:

(a) The department shall adopt a single system of graduated sanctions for violations of the conditions of community supervision. The system shall set forth a menu of presumptive sanctions for the most common types of supervision violations, including, but not limited to: failure to report; failure to pay fines and fees; failure to participate in a required program or service; failure to complete community service; and failure to refrain from the use of alcohol or controlled substances. The system of sanctions shall take into account factors such as the severity of the current violation, the supervised individual's previous criminal record, the number and severity of any previous supervision violations, the supervised individual's assessed risklevel, and the extent to which graduated sanctions were imposed for previous violations. The system shall also define positive reinforcements that supervised individuals will receive for compliance with conditions of supervision. The system shall clearly specify as to each type of sanction whether the supervised individual has the option to object and seek administrative review of the sanction.

(b) The department shall establish by policy an administrative process to review and approve or reject, prior to imposition, graduated sanctions that deviate from those prescribed.

(c) The department shall establish by policy an administrative process to review graduated sanctions contested by supervised individuals under § 40-28-305. The review shall be conducted by the chief supervision officer, who shall be impartial and trained to hear cases regarding graduated sanctions for violations of supervision conditions.

(d) The department shall establish and maintain a program of initial and ongoing training regarding the system of graduated sanctions for probation and parole officers.

Tenn. Code Ann. § 40-28-303. Tennessee Code Annotated section 40-28-304, entitled conditions of community supervision, further states:

For individuals placed on supervised probation, the judge of the court having jurisdiction over the case shall determine the conditions of community supervision, which shall include as a condition that the department supervising the individual may, in accordance with § 40-28-305, impose graduated sanctions adopted by the department for violations of the conditions of community supervision.

Tennessee Code Annotated section 40-28-305, entitled authority to impose graduated sanctions, states:

(a) Notwithstanding any rule or law to the contrary, the department may impose graduated sanctions.

(b) A probation and parole officer intending to impose a graduated sanction shall issue to the supervised individual a notice of the intended sanction. The notice shall inform the supervised individual of the violation or violations alleged, the date or dates of the violation or violations, and the graduated sanction to be imposed.

(c) The imposition of a graduated sanction or sanctions by a probation and parole officer must comport with the system of graduated sanctions adopted by the department under § 40-28-303. Upon receipt of the notice, the supervised individual shall immediately accept the sanction or, if permitted under the system of graduated sanctions, object to the sanction or sanctions proposed by the probation and parole officer. The failure of the supervised individual to comply with a sanction shall

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