Category: Case Summaries

State of Tennessee v. Tyshon Booker

State of Tennessee v.  Tyshon Booker, No. E2018-01439-SC-R11-CD (February 24, 2022).

Written By: Alejandra Nawrocki, Senior Editor; Riley Jones, Associate Editor; and Elizabeth Wheeler, Associate Editor.


Tyshon Booker was 16 years old when he was arrested in the shooting death of G’Metrik Caldwell. When Booker was tried, he was tried as an adult. The trial court ultimately convicted Booker of felony murder and aggravated robbery. Booker was automatically sentenced to life in prison, a 60-year sentence requiring at least 51 years of incarceration.

After granting certiorari, The Tennessee Supreme Court held that Booker’s sentence violated the Eighth Amendment because a court sentencing a juvenile must have the discretion to impose a lesser sentence after considering the child’s age and other circumstances. Thus, the court held that Booker would become eligible for an individualized parole hearing after serving 25 years of his calendar sentence that considers the “mitigating qualities of youth”.

In their reasoning, the court in Booker relied on the holdings of four United States Supreme Court cases that examined the requirements of the 8th Amendment in relation to juvenile sentencing: Thompson, Roper, Graham, and Miller. The court derived three principles from these cases, the first being that the Eighth Amendment’s requirement of proportionality means that punishment has to be graduated and proportioned. Secondly, the court emphasized that steps must be taken to minimize the risk of a disproportionate sentence when juveniles face the possible imposition of a state’s harshest punishments. Finally, these steps, whatever they may be, must allow the sentencer to take the mitigating qualities of youth into account by considering, among other relevant factors, (a) the juvenile’s “lack of maturity” and “underdeveloped sense of responsibility,” which can lead to “recklessness, impulsivity, and heedless risk-taking”; (b) the juvenile’s vulnerability and susceptibility to negative influences and outside pressure, as from family and peers; and (c) the fluidity of the development of the juvenile’s character and personality traits.

The court placed special emphasis on this final point, explaining that “[e]xpert testimony about adolescent brain development showed that the systems that register emotions, arousal, and reward sensitivity do not fully develop until around ages fourteen to sixteen. Yet the parts of the brain that inhibit and regulate those drives do not fully develop until age twenty to twenty-five.” Here, the court stated, “Mr. Booker’s post-traumatic stress disorder exacerbated this disparity—making the brain’s ‘alarm system’ overly sensitive to threats, bypassing adaptive responses like judgment and executive functioning, and hijacking the brain into a state of ‘fight, flight, or freeze.’ Thus, a young person like Mr. Booker is more impulsive, a bigger risk-taker, and has poor judgment.”

The Booker court also clarified that they were not holding that a juvenile may never receive a life sentence in Tennessee. Rather, consistent with Supreme Court precedent, this holding allows a sentencer to have the discretion to impose a lesser punishment and to properly consider an offender’s youth and other attendant circumstances.

Prior to Booker, Tennessee’s life sentence when automatically imposed on a juvenile was the harshest of any sentence in the country. Tennessee now joins the thirty-six other states that allow juvenile offenders release eligibility in less than thirty-five years. However, the court in Booker does not specify whether the ruling applies only to juveniles who were convicted of first-degree murder, as Tyshon Booker was. Thus, after Booker, many juvenile lifers convicted of other homicide charges have been left wondering whether the ruling applies to them. As Tennessee attorneys and parole boards begin implementing the new sentencing standard created by Booker, these questions are left open and are ripe for further analysis by the Tennessee Supreme Court.



Justice Holly Kirby, though concurring with the two ultimate holdings of the majority opinion, writes separately in order to emphasize just how influential the objective, national data regarding this type of sentence is. 

In this vein, Justice Kirby begins her concurrence with a brief rundown of the Eighth Amendment and its applicable rulings. For instance, at a base level, the Eighth Amendment bars both “barbaric” and “excessive” punishments. Coker v. Georgia, 433 U.S. 584, 592 (1977). Specific to this case, Justice Kirby additionally explains the process of an Eighth Amendment analysis as it pertains to juvenile offenders. Here, in examining the depth of proportionality regarding a certain sentence, the Supreme Court demands an examination of objective data. Gregg v. Georgia, 428 U.S. 153, 173 (1976). By focusing this examination on objective data, Justice Kirby explains, there is a lower risk of subjective biases from individual judges overpowering justice and a higher chance of the nation’s values/standards being demonstrated.  

Specifically, Justice Kirby follows the Court’s lead in examining three separate types of objective data in her concurrence: the number of states which have rejected the practice in question, how often the questioned practice is put to use, and the general trends in the usage of such a practice. Therein, Justice Kirby finds that there is, generally, a strong national consensus against mandating sentences of life imprisonment for juvenile offenders for first-degree murders with no aggravating factors. 

Under the above data categories, Justice Kirby finds zero other states which follow Tennessee’s framework of sentencing for such crimes/defendants. Additionally, Justice Kirby points to the short period of time that such change has occurred: prior to Miller v. Alabama’s publication in 2012, twenty-eight states applied similar life imprisonment statutes to juveniles. 567 U.S. 460 (2012). Today, Tennessee is the only state which proffers such a sentence. Justice Kirby similarly concurred with the majority opinion’s proposed remedy: applying the pre-1995 version of Tennessee Code Annotated § 40-35-501(h). Under this remedy, Mr. Booker would still be sentenced to a sixty-year imprisonment but with the eligibility of supervised release after twenty-five years served. 

To close her concurrence, Justice Kirby addresses some of the points brought forth by Justice Bivins’ dissent. Here, Justice Kirby denies that the plurality’s opinion encroaches into the sphere of power typically allotted to the legislature; in this vein, Justice Kirby points towards The Federalist Papers in support of the idea that courts may rule legislative statutes as unconstitutional. Additionally, Justice Kirby questions the dissent’s inclusion of an analysis of Mr. Booker’s “functional equivalent” argument when the majority opinion did not need to reach this argument. Finally, Justice Kirby critiques the dissent’s lack of discussion regarding the objective data surrounding these types of sentences. 

Going forward, this opinion will shape the future of sentencing in these types of cases. As such, this precedent, though bringing Tennessee into conformity with the rest of the nation, will likely see pushback as the rest of the State attempts to fall in line. 



It is Justice Biven’s position that applying Tennessee’s life sentence to juveniles does not violate the Eighth Amendment as it has been interpreted. 

In coming to this conclusion, Justice Bivens relies on the principle that this Court is bound to the United States Supreme Court’s existing interpretations of the Eighth Amendment. Justice Bivens further says that in determining the case at hand, the Court has a duty to follow the binding precedent from the U.S. Supreme Court cases, rather than “general expressions” from the case. Therefore, Justice Bivens’ analysis focuses on the specific holdings of the Graham and Miller cases and avoids relying on dicta from the Supreme Court. 

First, Justin Bivens considers the implications of Graham, which was raised by Mr. Booker. Justice Bivens says that the holding from that case is that the Eighth Amendment prohibits sentencing a juvenile offender who did not commit homicide to life without parole. 

Looking at the specific holding of the case, Justice Bivens says that Graham makes it clear that Tennessee cannot sentence juvenile nonhomicide offenders to life without parole. These offenders can be incarcerated for life, but they must have that opportunity to obtain release. Justice Bivens says that the Graham holding applies to (1) nonhomicide, juvenile offenders, and (2) life without parole. Through this narrow holding, Justice Bivens concludes that the Graham case does not apply to Mr. Booker because he was (1) convicted of homicide and (2) sentenced to life, not life without parole.

Second, Justice Bivens looks at Miller and concludes that it should not be extended to the case at hand–Mr. Booker was sentenced to life for a homicide offense. Justice Bivens says that the holding of Miller is that there can be no mandatory life without parole sentence for juveniles convicted of homicide, under the Eighth Amendment. Justice Bivens interprets this holding as meaning that Tennessee can impose life without parole on a juvenile homicide offender, but it must have a discretionary sentencing scheme. Additionally, the sentencer is not required to make any specific findings on the record before imposing life without parole. Justice Bivens applies Miller to Mr. Booker and poses the question of if it additionally prohibits mandatory life sentences for juvenile homicide defendants.

To answer this question, Justice Bivens looks to Tennessee courts and other state courts, which fall on either side of the issue. Some Tennessee courts have held that life sentences are unconstitutional because they are the functional equivalent of life without parole. Others have held that Miller only applies specifically to life without parole sentences. Justice Bivens concludes that the Court should remain consistent with the narrow interpretation of Miller, that it only applies to actual sentences of life without parole. 

In coming to this conclusion, Justice Bivens argues that Miller’s holding expressly applies to life without parole sentences, which is not Tennessee’s life sentence. While Mr. Booker will be incarcerated for the majority of his life, under a life sentence he still has the possibility of getting out. Justice Bivens argues that Miller should not be extended past its express language. Additionally, Justice Bivens says that it should be left to the legislature, which has the authority to determine sentences. Justice Bivens argues for deferring to the legislature to make policy decisions in determining these sentencing questions. 

In his dissent, Justice Bivens concludes that the life sentence for juveniles does not violate the Eighth Amendment, by relying on Miller’s narrow holding. Justice Bivens proposes a narrow view of considering U.S. Supreme Court holdings, that only focuses only the specific case holdings. If adopted, courts would no longer be able to consider dicta from these cases. Holdings would be restricted to their application of the facts of the case. In addition, if adopted,  juveniles would still be able to receive mandatory life sentences under the current precedent. Without action from the legislature or a determination from the Supreme Court, these life sentences would still be considered constitutional under the Eighth Amendment. 

State of Tennessee v. Quinton Devon Perry

State of Tennessee v. Quinton Devon Perry, No. W2019-01553-SC-R11-CD (April 5, 2022).

Written By: Alex Redmond, Associate Editor

In June 2019, Quinton Devon Perry (“Defendant”) pleaded guilty to twenty-four counts of aggravated sexual exploitation of a minor. The Defendant was found to have uploaded 174 images and videos, containing child pornography, to his personal Dropbox account.

The Defendant’s first six counts were classified as Class B felonies and the remaining counts were classified as Class C felonies. After the Defendant entered his guilty plea, the State filed a motion asking the trial court to impose consecutive sentences upon the Defendant under Tennessee Code Annotated § 40-35-115(b)(2). § 40-35-115(b)(2) gives the trial court discretion to impose a consecutive sentence where the Defendant is found to have a record of criminal activity that is extensive.

The trial court sentenced the Defendant to nine years of imprisonment for each of his Class B felonies and to four years for each of his Class C felonies. The trial court then concluded that the Defendant was an offender whose record of criminal activity was extensive and ordered that counts one through three be served concurrently, but that counts four through twenty-four be served consecutively. The trial court cited the large amount of child pornographic images involved, the Defendant’s admission of a serious child pornography problem, and the fact that the Defendant shared the images with others as key facts that led to its conclusion that the Defendant satisfied § 40-35-115(b)(2).

The total sentence to be served by the Defendant was 18 years. The Defendant appealed to the Tennessee Court of Criminal Appeals, challenging the length of his individual sentences and the trial court’s imposition of consecutive sentences. The Tennessee Court of Criminal Appeals affirmed both aspects of the trial court’s sentence. The Defendant appealed to the Tennessee Supreme Court, solely challenging the trial court’s imposition of a partially consecutive sentence.

The legal issue, in this case, was whether the trial court erred in finding that the Defendant was an offender whose record of criminal activity was extensive, pursuant to Tennessee Code Annotated § 40-35-115(b)(2), and thus erred in its decision to impose a partially consecutive sentence upon the Defendant.

Ultimately, the Court held that no, the trial court did not err in its finding that the Defendant was an offender whose record of criminal activity was extensive and, therefore, did not err in imposing a partially consecutive sentence.

In an appellate court’s review of a trial court’s consecutive sentence determination, the abuse of discretion standard, accompanied by a presumption of reasonableness, applies. State v. Pollard, 432 S.W.3d 851, 861-62 (Tenn. 2013). Here, the Defendant argued that the fact that he was convicted of twenty-four offenses, alone, was not a sufficient basis for the trial court’s conclusion that he had an extensive record of criminal activity. This is because the number of convictions was “solely a function of the nature in which the sexual exploitation statute allowed the State to indict.” The Court first recognized that “extensive” criminal activity under § 40-35-115(b)(2) was not self-defining or defined within the Sentencing Act. Thus, the Court construed its meaning by looking to authoritative dictionaries. Using those authoritative dictionaries, the Court concluded that an extensive record of criminal activity is “that which is considerable or large in amount, time, space, or scope.” The Court then disagreed with the Defendant’s view that the trial court only relied on the number of the Defendant’s convictions to find that the Defendant satisfied § 40-35-115(b)(2). The Court pointed to the trial court’s consideration of (1) the number of images the Defendant downloaded and (2) the fact that the Defendant shared those images with others. Those facts, which the trial court stated on the record, properly supported its finding that the Defendant was eligible for consecutive sentencing under § 40-35-115(b)(2) because those facts related to the amount and scope of the Defendant’s criminal activity.

The trial court’s failure to specifically address the temporal nature of the offenses, or the time span in which the Defendant spent committing the offenses, did not negate the presumption of reasonableness for the court’s sentencing decision. Because the trial court’s findings were sufficient to receive the presumption of reasonableness, it had to be upheld unless there was an abuse of discretion. A trial court abuses its discretion when it causes injustice to the challenging party by “(1) applying the incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence.” Harmon v. Hickman Cmty v. Healthcare Servs., Inc., 594 S.W.3d 297, 305 (Tenn. 2020). In this case, the Court found that the Defendant failed to show that the trial court abused its discretion.

In this opinion, the Court took the opportunity to name several non-exhaustive factors for trial courts to utilize in determining whether a defendant’s record of criminal activity is extensive within the meaning of § 40-35-115(b)(2). In other words, whether the record of criminal activity is “considerable or large in amount, time, space, or scope.” Those factors include (1) The amount of criminal activity, often the number of convictions, both currently before the trial court for sentencing and prior convictions or activity; (2) the time span over which the criminal activity occurred; (3) the frequency of criminal activity within that time span; (4) the geographic span over which the criminal activity occurred; (5) multiplicity of victims of the criminal activity; and (6) any other fact about the defendant or circumstance surrounding the criminal activity or convictions, present or prior, that informs the determination of whether an offender’s record of criminal activity was considerable or large in amount, time, space, or scope. The Court also clarifies that a defendant does not need to have prior criminal convictions or activities to be considered an offender under § 40-35-115(b)(2).


State of Tennessee v. Marvin Maurice Deberry

State of Tennessee v. Marvin Maurice Deberry, No. W2019-01666-SC-R11-CD (April 5, 2022).

Written By: Jonathan Garner, Senior Editor

In 2018 the defendant, Marvin Maurice Deberry, was stopped by law enforcement officers for driving with a defective brake light. Defendant was indicted for multiple traffic- related offenses, one which included driving after being a motor vehicle habitual offender (“MVHO”), violating the Motor Vehicle Habitual Offenders Act (“MVHO Act”). Defendant was convicted by a jury on May 15, 2019, on all counts. The jury recommended only a fine of $1,500 for the MVHO offense, however, he was originally sentenced to incarceration.

Two weeks before Defendant was convicted, the Tennesee legislature repealed the MVHO Act and it was signed into law on May 24th, 2019. The law went into effect six (6) weeks after Defendant was convicted. The repeal of the Act repealed the offense of driving after being declared an MVHO. Furthermore, the MVHRO Repeal Act went into effect one week after Defendant was sentenced. Defendant argued that the because the legislature had repealed the MVHO Act,  his punishment should be in accordance with the “lesser penalty” within the meaning of the criminal savings statute, which would be no incarceration.

The Defendant was convicted by a jury on May 15, 2019, on all counts charged and was sentenced to incarceration. Defendant filed a motion for a new trial, verdict of acquittal, or modification, arguing that the because the legislature had repealed the MVHO Act, his punishment should be in accordance with the “lesser penalty” within the meaning of the criminal savings statute, or that he should receive no incarceration since the Act was repealed. The trial court agreed that “no penalty is a lesser penalty”, and granted the Defendant’s motion for a reduction of sentence. The Court of Criminal Appeals Affirmed.

The issue in this case was whether a statute that repeals a criminal offense “provides for a lesser penalty” within the meaning of the criminal savings statute.

Although Tenn. Code Ann. § 55-10-616(a) (2017) was no longer in effect at the time of sentencing, Defendant was correctly sentenced as an MVHO under the law in effect at the time of conviction. This is because of the replacement statute, Tenn. Code Ann. § 55-10-601 (2020), which imposed no penalty and, therefore, was not a statute providing for a lesser penalty within the meaning of the criminal savings statute, Tenn. Code Ann. § 39-11-112 (2018), which did not encompass a statute that eliminated an offense altogether

In this case, the Court held that a statute that repeals a criminal offense does not “provide for a lesser penalty” within the meaning of the criminal savings statute. Instead, an individual that commits an offense and the statute that they committed is repealed, should be convicted and sentenced under the law in effect when the offense was committed unless the legislature provides otherwise.

The phrase “provides for a lesser penalty” under the criminal savings statute, and interpreted by the court, means that a person must still be punished for the crime they committed and cannot receive a “get out of jail” free card whenever the legislators repeal the act unless they state otherwise. This is an interpretation of balance within the criminal justice system. The Court essentially weighed the balance of people who commit criminal acts and were aware of it at the time, and what happens if they repeal the act after they have been convicted but not yet sentenced. In society, a person who commits an act against the law must be punished and that is what the Court is saying here. To let a guilty man go free is inappropriate in the eyes of the law.

Tommie Phillips v. State of Tennessee

Tommie Phillips v. State of Tennessee, No. W2019-01927-SC-R11-PC (November 3, 2022).

Written By: Alex Redmond, Associate Editor

The Petitioner was found guilty of several charges, including felony murder, attempted first-degree murder, and especially aggravated burglary. Prior to his arrest the Petitioner admitted to police that he had stabbed two people during a fight that broke out over a drug dispute. After his arrest, the Petitioner admitted to police that he had also killed a person during the dispute. At trial, the Petitioner’s statements were used against him, along with eyewitness identification, victim testimony, and the testimony of a police officer who overheard the Petitioner telling his mother his version of what had occurred. A jury convicted the petitioner. He received a life sentence plus 60 years.

The Petitioner filed a petition for post-conviction relief. The Petitioner argued that his trial counsel failed to provide him with effective assistance of counsel because they did not challenge the admissibility of his statements to the police on Fourth Amendment grounds. The post-conviction court denied relief, stating that the Petitioner failed to establish his ineffective assistance of counsel claim. The Petitioner appealed that decision, but the Court of Criminal Appeals affirmed the judgment of the post-conviction court. The Petitioner appealed that decision, arguing that the lower courts used the incorrect standard in determining whether he had established an ineffective assistance of counsel claim. The Tennessee Supreme Court granted review.

The legal issue, in this case, can be stated as the following: What legal standard should be applied when a Petitioner is attempting to prove prejudice, to establish an ineffective assistance of counsel claim, due to a failure to file a motion to suppress on Fourth Amendment grounds?

To establish a successful claim of ineffective assistance of counsel based on counsel’s failure to file a motion to suppress evidence on Fourth Amendment grounds, the petitioner must prove prejudice by showing: (1) a suppression motion would have been meritorious; (2) counsel’s failure to file such motion was objectively unreasonable; and (3) but for counsel’s objectively unreasonable omission, there is a reasonable probability that the verdict would have been different absent the excludable evidence.

Tennessee’s Post-Conviction Procedures Act provides criminal defendants a vehicle to bring ineffective assistance of counsel claims against the State. Tennessee law places the burden of proof on the petitioner seeking relief. The petitioner must prove the allegations of fact in his or her petition by clear and convincing evidence. A post-conviction court must then employ the test laid out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, the post-conviction court must analyze those allegations of fact and determine whether the counsel’s performance was deficient and whether that deficiency prejudiced the petitioner. In Kimmelman v. Morris, 477 U.S. 365, 375 (1986) the Supreme Court set forth the legal standard and burden of proof to assess prejudice under the Strickland analysis. Thus, to establish prejudice, the petitioner must be able to show that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. The three-prong test set out by the Tennessee Supreme Court is intended to reflect the connection between Kimmelman and Strickland, in the context of ineffective assistance of counsel claims for failure to file a motion to suppress on Fourth Amendment grounds.

Here, the Petitioner failed to show prejudice under the three-prong test articulated by the Court. Generally, a warrant is required for a defendant’s Fourth Amendment protection from unreasonable searches and seizures to be satisfied. However, an arrest supported by probable cause is an exception to this requirement. Here, the petitioner was arrested without a warrant, but he was given a probable cause determination within seven hours of his arrest. In other words, there was no unreasonable delay between the arrest and the probable cause determination. Therefore, a suppression motion filed on Fourth Amendment grounds would have been meritless. The Petitioner also failed the second prong of this test because trial counsel choosing not to file a meritless motion is not objectively unreasonable. Lastly, the Petitioner could not demonstrate that the verdict would have been different absent his inculpatory statements made to the police. The State had reliable identification evidence, testimony from the surviving victims, and the testimony from the police officer who overheard the Petitioner telling his version of events to his mother. So, the judgment of the Court of Criminal Appeals is affirmed.

Prior to this case, the Tennessee Supreme Court had recognized the legal standard set out in Kimmelman but had not had the opportunity to apply it in this context. This case consequently resolved confusion between the test laid out in Kimmelman and the test laid out in Cecil v. State, No. M2009-00671-CCA-R3-PC, 2011 WL 4012436 (Tenn. Crim. App. Sept. 12, 2011). The Petitioner argued that any reliance on Cecil in determining the outcome of his claim was inappropriate because Kimmelman is the governing standard. However, as the Tennessee Supreme Court pointed out, the Cecil and Kimmelman standards for showing prejudice in support of an ineffective assistance of counsel claim are nearly identical. Although it was clear from the Cecil court’s analysis that the correct burden of proof and the legal standard was utilized, the Tennessee Supreme Court acknowledged that the court could have been more precise in defining the legal standard for post-conviction matters as it related to state statutory requirements and the Strickland/Kimmelman requirements. Thus, for clarity and consistency, moving forward lower courts should rely on Kimmelman and utilize the test set out by the Tennessee Supreme Court in this case when deciding this type of ineffective assistance of counsel claim.

State of Tennessee v. Tyler Ward Enix

State of Tennessee v. Tyler Ward Enix, No. E2020-00231-SC-R11-CD (January 26, 2022).

Written By: Riley Jones, Associate Editor

In 2015, Mr. Enix was convicted of premeditated first-degree murder and especially aggravated robbery. He was charged and convicted of stabbing his ex-wife to death in her apartment. At trial, the prosecution argued that Enix was violent and the victim had warned her friends and family of his violent tendencies. The prosecution also put on evidence that the victim was found dead in her apartment after she did not show up for work and the police conducted a wellness check. The police found two phones at the crime scene. On one of those phones, there were records of Mr. Enix and the victim arguing around the time of the crime. The victim had forty-seven stab wounds. Mr. Enix was arrested in Ohio while driving the victim’s car and using her cards to withdraw cash. Their daughter was found in the car with him.

During the trial, Mr. Enix’s defense was that he was acting in a state of passion when he stabbed his ex-wife and that the murder was not premeditated. He also argued that taking her items was not part of a connected plan to the killing, so it was not a robbery. Mr. Enix was convicted and afterward filed a motion for a new trial. In his motion, he argued that there were four instances of prosecutorial misconduct during the closing arguments on which Mr. Enix was entitled to relief, despite not having objected to them during the trial.

First, the record showed that the prosecution counted to 47, the number of stab wounds inflicted on the victim, and stated that he was out of breath and he hadn’t even been wrestling anyone. In the motion, Mr. Enix argued that the prosecution was pounding on the table and testifying to the mechanics of the homicide, which was highly prejudicial. Second, the record also showed that the prosecution posed the possibility that there were communications on the victim’s phone, like with a man she was dating, that was not found because the defendant destroyed evidence. The motion argued that this was speculation and violated the defendant’s right to a fair trial. During rebuttal, the record showed that the prosecution said that Mr. Enix was a coward because he ran from the police. The motion said that this was improper name-calling. Lastly, the record also showed that the prosecution said the defendant was fleeing to Canada, which the motion argued was also speculation.

Mr. Enix argued in his motion for a new trial that he was entitled to relief for these, even though he had not objected to the statements in the trial. Mr. Enix said that including the objections in the motion was enough. The Criminal Court of Appeals review the motion under the Plain Error Doctrine and affirmed the judgment against Mr. Enix. Mr. Enix appealed to the Supreme Court of Tennessee. The question before the Supreme Court was what the appropriate standard of review for prosecutorial misconduct during the closing when the defendant does not object.

The Court held that the appropriate standard of review is the Plain Error Standard and affirmed the decision of the Criminal Court of Appeals. The Court said that in general, appellate review is limited to issues that a party properly preserves for review by objecting at trial and on appeal. Mr. Enix’s motion relied on State v. Hawkins, a case that applied plenary review to two claims raised in a motion for a new trial. However, the Court clarified that that case did not explicitly overrule previous holdings that say not objecting to prosecutorial misconduct in a closing argument waives the right to appeal. The Court read the case as not overruling any of these prior cases and instead overruled Hawkins to the extent it is inconsistent with this case’s decision.

In addition, since the Plain Error Standard applies in these cases, the court held that Mr. Enix is not entitled to relief. The standard’s requirements are: (1) a clear record; (2) a clear breach of a rule of law; (3) the breach adversely affected a substantial right; and (4) the error should be considered to do justice. The issue here is that it did not affect a substantial right. It did not affect the outcome of the proceedings because there was an overwhelming amount of evidence that Mr. Enix premeditated murder. This evidence included previous texts that the defendant was going to harm the victim, recovered DNA and the fact that the defendant fled.

There is nothing on the record to show that these comments made by the prosecutor affected the proceedings. Because the prosecutorial misconduct did not affect the proceedings, the Court upheld Mr. Enix’s convictions.

This case defines what the standard will be when deciding on prosecutorial misconduct in closing arguments. Because the Court determined that the Plain Error Standard applies, objecting contemporaneously will be crucial to preserving a claim for appeal on these grounds. The consequence of this decision is that without a contemporaneous objection, prosecutorial misconduct in closing arguments will likely not be grounds for a new trial. The instances will have to satisfy the high burden of the Plain Error Standard. Specifically, the instance will have to have affected a substantial right of the defendant. The Court set this bar at having an effect on the result of the proceedings. After this case, it will be important to object to any possible prosecutorial misconduct in the closing arguments as it happens.

State of Tennessee v. Terrell Lamont Reid

State of Tennessee v. Terrell Lamont Reid, No. W2019-00636-SC-R11-CD (November 5, 2020).

Written By: Emily Seaborn, Associate Editor

This case concerns claims of relief under Tennessee Rule of Criminal Procedure 36.1, and whether claims are void, or voidable when a person is sentenced under a statute that is presumptively constitutional at the time but is later declared unconstitutional.

The crux of this case lies in its procedural history, not its factual background. On June 24, 2015, Terrell Lamont Reid pleaded guilty to possession of cocaine with intent to sell and possession of a firearm by a firearm by a convicted felon. The latter of the charges was enhanced from a Class C felony to a Class B felony pursuant to the criminal gang enhancement statutes. The trial court sentenced Reid to concurrent seventeen-year sentences for both convictions.

On April 7, 2016 – after Reid was sentenced – the Court of Criminal Appeals declared the criminal gang enhancement statute unconstitutional as a violation of substantive due process. However, the enhancement was presumptively constitutional throughout Reid’s sentencing. Despite the finding that the enhancement was unconstitutional, Reid failed to file a petition for post-conviction relief within the one-year period.

Then, on January 14, 2019, Reid filed a pro se “Motion to Correct [an] Illegal Sentence Pursuant to Tennessee Rule[] of Criminal Procedure 36.1.” In short, Reid’s argument was that his sentence was illegal because the criminal gang enhancement was deemed unconstitutional, and that the appellate court’s decision declaring the enhancement unconstitutional should be applied retroactively to his case. On the other hand, the State argued that Reid was not entitled to relief because his case was “final and not pending or under review” when the appellate court’s decision was decreed.

The trial court denied Reid’s motion, but after he appealed, the Court of Criminal Appeals reversed the judgment of the trial court. The court held that the “application of an unconstitutional law renders a sentence void, and therefore, illegal.” Finding Reid’s sentence void and illegal, the Court of Criminal Appeals remanded the case to the trial court “to determine whether the illegal aspect was a material component of the plea agreement.” The Tennessee Supreme Court then granted the State’s application for permission to appeal.

The Tennessee Supreme Court was reviewing whether Reid made a colorable claim for relief under Tennessee Rule of Criminal Procedure 36.1, which governs sentences that are void, or illegal. Much of this case turns on the Court’s interpretation of its prior decision in Taylor v. State, 995 S.W.2d 78 (Tenn. 1999). In Taylor, the State argued, and the Court concurred, that this Court held that a sentence is not rendered void merely because the statute under which the sentence was imposed is later declared unconstitutional. This holding distinguishes a void sentence from a voidable sentence. A voidable sentence may only be corrected if challenged in a timely post-conviction petition, whereas if a sentence is void and illegal, the sentence may be entitled to relief under Rule 36.1. Rule 36.1 motions can be filed at any time.

The dispositive issue, in this case, was whether Reid’s sentence was void or voidable. If Reid’s sentence was voidable, then it could only be corrected by a one-year post-conviction motion, but if it was void – like he asserts – then it could be entitled to relief under Rule 36.1. Ultimately, the Tennessee Supreme Court concludes that Reid’s sentence is voidable, and not void and illegal. The Court reaffirms its holding in Taylor – “that a statute is presumed constitutional and that a sentence imposed in accordance with a statute in effect at the time of its imposition is voidable and not void.” The Court also differentiates its interpretation of Taylor from that of the intermediate appellate court. While the intermediate appellate court cites to Taylor, and suggested that its holding “is limited to cases preceding the adoption of Rule 36.1 and to cases where declaring a statute unconstitutional had the effect of reviving an earlier statute,” the Tennessee Supreme Court found that it did not limit its holding in that way.

This case clarifies its past ruling in Taylor and reaffirms that a sentence is not per se void and illegal if the statute is presumptively constitutional, but was later declared unconstitutional. Notably, this ruling and interpretation narrows a petitioner’s ability to appeal. If the Petitioner was sentenced under a statute that was later declared unconstitutional, they must challenge the sentence with a timely petition. In contrast, if this Court held that the sentence was void, the sentence could be corrected at any time. Petitioners are now restrained to a time period to appeal their sentence if the statute is declared unconstitutional, which can create greater barriers for Petitioners to correctly, and timely, file their appeals.

State of Tennessee v. William Eugene Moon

State of Tennessee v. William Eugene Moon, No. M2019-01865-SC-R11-CD (October 6, 2021).

Written By: Emily Wheeler, Associate Editor

William Eugene Moon was convicted of both the unlawful employment of a firearm while attempting to commit or during the commission of a dangerous felony and attempted murder. Upon appeal, the Court of Criminal Appeals held the Defendant was not denied a speedy trial and that, though the trial court had committed an error in allowing the improper impeachment of one of the defense’s witnesses, it was a harmless error. Tennessee’s Supreme Court granted the Defendant’s application for appeal regarding whether the appellate court applied the proper standard of review for the right to a speedy trial if that review was completed correctly and if there was a harmless error regarding the improper impeachment of that witness.

On December 17, 2017, Corporal Wilder was patrolling when he noticed four individuals moving between a parked vehicle and a trailer park. Upon questioning an employee of the trailer park, Corporate Wilder asked for the Defendant to exit the trailer; upon his exit, Corporal Wilder noticed a plastic bag inside the Defendant’s mouth and instructed him to spit it out. The two engaged in a brief scuffle.  The details of this scuffle formulated the basis of this case.  Per Corporal Wilder, the Defendant pulled a gun during the scuffle and aimed it towards Wilder’s abdomen.  As such, Corporal Wilder believed the Defendant intended to use deadly force, pushed the Defendant away, and shot him five times. On the other hand, the Defendant alleges that he did not fight against Corporal Wilder and that while he did have a gun on his person, he never drew his weapon. Instead, the Defendant contends the gun fell out when he was shot.

Originally, the Defendant was indicted on five counts: two counts of unlawful employment of a firearm during an attempt to commit or during the commission of a dangerous felony, attempted first-degree murder, resisting arrest, and aggravated assault. Nonetheless, the trial proceeded with only Counts 1, attempted first-degree murder, and 5, unlawful employment of a firearm during an attempt to commit or during the commission of a dangerous felony. At trial, Detective Pyrdom testified that he arrived on the scene as backup and witnessed the scuffle. Though he was unable to see either party’s hands or a weapon in the Defendant’s hands, Detective Pyrdom did hear Corporal Wilder giving directions to the Defendant. After the shots were fired, Detective Pyrdom retrieved the Defendant’s weapon which was found at the bottom of the trailer’s steps. For the defense, two eyewitnesses, Larry and Donald Woods, testified that they never saw the Defendant holding a weapon during the encounter. Further, another witness claimed to have seen the Defendant put the gun in his pants before the encounter but never saw the gun in his hands during the encounter.

Regarding whether a defendant had access to a speedy trial, the parties differ on what would be the proper standard of review. Here, the State argued for an abuse of discretion standard while the Defendant argued for a de novo review. Ultimately, the Court agreed with the Defendant and found that the “standard of review for whether a criminal defendant was denied the constitutional right to a speedy trial is de novo with deference to the trial court’s finding of facts unless the evidence preponderates otherwise”. Further, for this review, the Court examines four factors: the length of the delay; the reason for the delay; whether there was a demand for a speedy trial; and the presence/extent of prejudice to the defendant. Here, the Court found the trial had occurred less than fourteen months from when the events transpired; within that time, two continuances were granted to accommodate an older trial and to ensure a three-day window for this trial to occur. Accordingly, these delays were reasonable, weighing the first two factors against the defendant. For the third, it was undisputed that the Defendant requested a speedy trial which weighed in his favor. Finally, the Court found that the Defendant was unable to show “any discernible prejudice” suffered from his delay in the trial.

Finally, the Court agreed with the Defendant that the improper impeachment of Mr. Larry Woods “more probably than not” had an effect on the judgment to create a reversible error. Here, on cross-examination, the Prosecution almost immediately asked Mr. Woods if he had ever sold methamphetamine from his trailer. The trial court overruled the defense counsel’s objection to the questioning while the appellate court was thorough in explaining why this decision was in error. Here, however, the Defendant contends the appellate court erred as it should not have been deemed a harmless error. Ultimately, the Court found that because the evidence against the Defendant “was not overwhelming”, the effect that the improper impeachment had on the jury’s verdict was extremely difficult to quantify. Therein, the case was remanded to the trial court.

Overall, this decision was extremely important in its clarification of the proper standard of review regarding appeals for one’s right to a speedy trial. Interestingly, the Supreme Court of Tennessee did not follow the State’s preference of the standard that the Court of Criminal Appeals had utilized. Even though their ultimate holdings were the same for that point, the differentiation in the standards provides clarity for lower courts to lean upon in future cases. Additionally, this standard will become increasingly crucial as courts continue to get back on track from the effects of COVID-19. While this case’s events occurred almost five years ago, the issue of providing a defendant with his right to a speedy trial will likely be one that appellate courts will face more often going forward. In addition, because the remnants of the pandemic are being felt nationwide, the Court’s ruling on its governing standard of review could be influential as other states face similar questions.

State of Tennessee v. Michael Rimmer

State of Tennessee v. Michael Rimmer, No. W2017-00504-SC-DDT-DD (April 16, 2021).

Written By: Andrew Daffron, Associate Editor

This case involves the disappearance and assumed death of Ricci Lynn Ellsworth. The procedural history of this case takes place over twenty years and involved two trials and three sentencing hearings.

On February 8, 1997, the victim, Ricci Ellsworth, was working as the night clerk at the Memphis Inn in Shelby County. Ellsworth worked in an enclosed office in the motel lobby behind a locked door, shielded from guests by protective glass. On the night of Ellsworth’s disappearance, several guests reported seeing a figure in the motel’s parking lot near a maroon sedan. One guest reported entering the hotel lobby area in front of a figure that Ellsworth appeared to know. Another guest reported seeing two men walk into the lobby area. Another guest reported seeing a figure put something wrapped in a blanket in the trunk of his car, and the car sinking from the weight of the object. The guest then walked into the lobby after the man from the parking lot and reported seeing another man behind the counter pushing cash through the window. He reported that both men had blood on their hands.

At around 3:00 a.m., a local CSX worker tried to get in touch with crew members who were staying at the motel. When the clerk did not answer, he drove to the motel. Upon arriving, he went into the employee bathroom, finding the sink running, blood on the sink basin, and the toilet seat was removed and covered in blood. The worker attracted the attention of two Shelby County Sherriff’s Office patrol cars and directed them to the motel. The police were unable to find Ellsworth, though her car was still in the parking lot. The officers contacted the Memphis Police Department (MPD) which took over the investigation. The MPD officers took photographs of the crime scene, dusted for fingerprints, collected and tagged evidence, and completed paperwork. Blood samples were taken from numerous places blood was discovered. The victim’s body was never found.

The evidence quickly pointed to the Defendant. The Defendant previously had a tumultuous romantic relationship with the victim, during which he was convicted of raping her. During his incarceration for her rape, the Defendant met a childhood friend of the victim, who informed the Defendant that the victim has received a sum of money in settlement of a personal injury claim. This angered the Defendant who believed he was entitled to a portion of the money. The Defendant informed the friend that he intended to kill the victim upon his release from prison. This is one of several people the Defendant informed that he intended to kill the victim while incarcerated. He also bragged to another inmate about being able to dispose of a body in a manner where it would never be found. Upon his release from prison, the Defendant began working at a local automotive collision center. One of his coworkers drove a maroon sedan, which the Defendant asked to borrow. The car was never returned by the Defendant.

In early March, the defendant was stopped in Indiana for speeding. Upon running the car’s plates, the officer realized the MPD had an interest in the car as part of an ongoing investigation. The local police in Indiana contacted MPD who sent detectives that night. MPD detectives watched a local evidence technician process the car. The technician found traces of blood, took ninety-six photographs of the vehicle, and took multiple samples of blood-stained items found in the car. The car was then transported to Memphis and ultimately transferred to the TBI for testing. Evidence was then transferred to the FBI, which found the blood samples taken from the car to match blood samples taken from the crime scene. The FBI forensic examiner also compared the blood samples to samples from the victim’s mother, finding it likely that the samples were taken from a descendant of the mother. The maroon sedan was later returned to the coworker after MPD determined that it no longer had the storage capacity to hold the car, and that MPD had taken enough evidence from it.

After his arrest for the murder of the victim, the Defendant attempted to escape three times. The first escape attempt was from his cell in Indiana. There, he spoke to another inmate about having killed the victim. The second attempt was from a federal prisoner transport van. The third attempt was from the Shelby County Jail.

The first trial occurred in 1998. A jury convicted the Defendant of first-degree murder, aggravated robbery, and theft of property – the judge imposed a death sentence. The State had also charged the Defendant with felony murder, but the jury did not reach a verdict on this count. This was appealed and affirmed by the Court of Criminal Appeals and the Tennessee Supreme Court. The defendant sought post-conviction relief. The post-conviction trial court granted relief, finding ineffective assistance of counsel, and ordered a new trial.

During the second trial in 2016, the state called an expert witness to testify about the blood patterns at the crime scene. He testified that the blood stains were consistent with either blunt force trauma or trauma from a sharp object, stating it was possible for the toilet seat to have been used to kill the victim. The Defendant called two expert witnesses, both of whom raised issues with the collection and testing of the evidence, and that they were unable to make accurate determinations because the evidence was no longer available. After considering the evidence, the jury convicted the Defendant of first-degree premeditated murder, first-degree felony murder, and aggravated robbery. At the penalty phase of the trial, the Defendant waived his right to present mitigating evidence. The jury found an aggravating circumstance beyond a reasonable doubt and imposed a sentence of death.

The Tennessee Supreme Court first considered whether the conviction for felony murder violated the prohibition on double jeopardy. The Court found that it did not because of the nature of the jury instructions. The jury received instructions that were considered to be “acquittal first” instructions, meaning the jury was instructed to consider the lesser count only if it first found the defendant not guilty of the greater offense. As the jury found the Defendant to be guilty of the greater offense, it did not reach the felony murder charge, therefore negating any claim of double jeopardy. The Court also found that the Defendant failed to preserve the issue of prosecutorial misconduct in a manner that would create a double jeopardy issue.

The Court then considered whether MPD erred in not retaining the car so that the Defendant’s experts could evaluate the evidence. The Court affirmed the lower courts’ findings that the State did not have a duty to retain the car. The Court based this finding on the thoroughness of the retrieval of evidence from the car, finding that under these circumstances the car had little exculpatory value and that the Defendant had access to the investigatory materials. In the alternative, the Court found the State did not act improperly because there was no negligence in releasing the car to the owner, the vehicle itself had little significance as evidence, and a finding that the other evidence used at trial was overwhelming.

The Court turned next to whether the trial court erred in allowing the previous convictions for rape and assault under Tennessee Rules of Evidence 404(b). The Court found no abuse of discretion and that the trial court properly admitted the evidence as it was probative of identity, motive, intent, and premeditation, all non-propensity reasons for admission. The Court also considered whether the trial court erred in allowing evidence of the Defendant’s escape attempts. The Court stated that evidence of escape or attempted escape after the commission of a crime can be relevant and admissible at trial to show guilt, knowledge of guilt, and consciousness of guilt. The Court found that this evidence was similarly properly admitted under Rule 404(b), finding that the trial court mitigated any risk of unfair prejudice by giving the jury two limiting instructions about the use of this evidence.

The Court then conducted its mandatory review of the death sentence received by the Defendant. This review is statutorily mandated and is comprised of an evaluation of whether: (1) the death sentence was imposed in an arbitrary fashion; (2) the evidence supports the jury’s findings of statutory aggravating circumstances; (3) the evidence supports the jury’s finding that the aggravating circumstances outweighed any mitigating circumstances; and (4) the capital sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.

The Court found that the trial court conducted both the guilt and penalty phases of the trial in accordance with the applicable statutes and procedural rules, and that the evidence was more than sufficient to support the guilty verdict. The imposition of the death sentence was therefore not arbitrary. The jury did find an aggravating circumstance beyond a reasonable doubt. The record contained little if any mitigating circumstances. Finally, the Court found that the sentence was proportional when compared to similar cases. Finding all the required conditions sufficiently met, the Court affirmed the death sentence.

This case highlights the importance of maintaining the record throughout the pendency of an appeal of a capital case. The events, in this case, occurred over the course of over twenty years and have involved numerous trials, sentencing hearings, and appeals, including to the Tennessee Supreme Court twice. The issues raised in this appeal all were resolved by looking to the record and either finding procedures were sufficiently followed, or in the appeal of the felony murder charge, insufficiently followed. Capital cases often take decades to reach their conclusion, so ensuring a record is sufficient to allow the reviewing court to adequately review each issue raised in subsequent appeals is crucial.

State of Tennessee v. Craig Dagnan

State of Tennessee v. Craig Dagnan, No. M2020-00152-SC-R11-CD (March 4, 2022).

Written By: Claudia Coco, Senior Editor

The Supreme Court of Tennessee considered the case of State of Tennessee v. Craig Dagnan on December 1, 2021. Dagnan appealed his revocation of probation, and while he conceded that the revocation of probation was proper, he claimed that the “trial court abused its discretion by ordering him to serve the balance of his sentence in the Tennessee Department of Corrections.”[i] The Court took this case as an opportunity to clarify the standard for the revocation of probation. The Court ultimately held that the probation of revocation process is a two-step consideration of the trial court. “The first step is to determine whether to revoke probation, and the second is to determine the appropriate consequences upon revocation.”[ii] The case history is as follows.

In July of 2014, Dagnan was accused of a Class D felony, theft over $1,000 but less than $10,000. Dagnan pleaded guilty to that offense in January of 2015. Dagnan “received a six-year sentence as a Range II offender, with five years, six months, and nine days suspended to supervised probation,” and he was ordered to pay $1,250 in restitution and to complete over 100 hours of community service, and not to contact the victim.[iii] Dagnan’s first violation of probation happened four months later because he failed to pay restitution, then he failed to show up to the hearing and was arrested. At a subsequent revocation hearing, Dagnan was sentenced to 90 days in local confinement.

Five months later, Dagnan violated his probation for a second time when he failed his drug screen by testing positive for methamphetamine and failed to pay restitution. Dagnan failed to report to his supervisor as directed by a trial court summons. Dagnan then received a subsequent revocation hearing, where his probation was revoked partially, and he was ordered to serve eight months in local confinement.

In May of 2018, Dagnan had his probation revoked for a third time. Dagnan’s probation was revoked because “he failed to abide by curfew, left the state without permission, incurring a new criminal charge—driving with a suspended license—in Georgia, and failing to report the new charge.”[iv] This time his probation was revoked to serve 120 days in confinement, attend anger management courses, and prohibited him from driving without a valid license as additional probation conditions.

In November of 2018, Dagnan was subject to a fourth probation revocation process for failure to comply with the probation conditions set in May of 2018. After Dagnan’s hearing in January 2019, “the trial court entered an order partially revoking Defendant’s probation to serve eleven months and twenty-nine days in confinement.”[v] Dagnan received a furlough to be released from jail to Freedom House Ministries for drug treatment. A term of the furlough included, “that the defendant was required to report back to the Marion County Jail within four hours if he left the treatment facility for any reason prior to the completion of the program.”[vi]

In June of 2019, Dagnan violated his probation for a fifth time. The treatment program dismissed Dagnan, and Dagnan failed to report to the jail within four hours of release of the program. Additionally, Dagnan “was charged in Georgia with a misdemeanor failure to appear,” and “he also allegedly failed to pay supervision fees, courts costs, and/or fines, and failed to report his arrest.”[vii] The probation revocation hearing was held in December of 2019. After listening to the defendant’s proof, the court instructed that it was conducting a two-step analysis. First, the court made a finding “that defendant violated his probation by failing to report back to jail following his discharge from the treatment facility and absconding.” The second finding “was based on the evidence presented at the hearing and numerous factors including Defendant’s character, prior criminal history, mental health and addiction, and the nature of the offense.”[viii] The court stated that regardless of whether Dagnan was properly discharged from the treatment facility he knew that he had to report to the jail within four hours of release. The court in his findings stated, “Mr. Dagnan, I really only have one option at this point just based upon the criminal history and all of the chances that you’ve been given.”[ix] At the conclusion of the hearing, Dagnan’s probation was revoked in full.

At the Criminal Court of Appeals level, the court found that the trial court judge did not abuse his discretion in revoking the probation in full and ordering the defendant to serve the remainder of his sentence. There was one concurring opinion from Judge Timothy Easter, in which he stated that the statute does not require additional findings of fact or an additional hearing, it is simply sufficient to find that there was a violation of probation.

The Tennessee Supreme Court took this opportunity to clarify the standard. The Supreme Court clarified that probation revocation is a two-step consideration. Clarifying that the first step is to determine whether to revoke probation and the second is to determine the appropriate consequences upon revocation. The trial court does not have to conduct an additional hearing to make these findings. The trial court can make these findings at the revocation hearing entitled to the defendant by law. The Court clarified that “these are two distinct discretionary decisions, both of which must be reviewed and addressed on appeal.”[x] The Court addressed that these additional factual findings facilitate meaningful appellate review. It allows the appellate court to look at factors the trial court reviewed when making a discretionary decision, when reviewing it under an abuse of discretion standard.

The Tennessee Supreme Court found that the appellate court is to conduct an abuse of discretion standard for both steps. The standard of review to be used by the appellate court is “abuse of discretion with a presumption of reasonableness so long as the trial court places sufficient findings and the reasons for its decisions as to the revocation and the consequences on record.”[xi] The court stated that “it is not necessary the trial court’s findings to be particularly lengthy or detailed but only sufficient for the appellate court to conduct a meaningful review of the decision.”[xii] The reasoning for the decision is to promote meaningful appellate review and public confidence. If there are no factual findings made by the trial court, then the “appellate court may conduct a de novo review if the record is sufficiently developed to do so, or the appellate court may remand the case to the trial court to make such findings.”[xiii]

This decision requires that trial court judges conduct a two-step process when conducting a revocation hearing. By not only finding that there was a violation of probation but requiring that the judge make factual findings regarding the consequences of the violation of probation, which allows the appellate court to conduct a meaningful review of the revocation. In addition, it serves a purpose to let the defendant know why his probation is being revoked and the factors that the judge is weighing and considering when making the decision regarding punishment. Finally, it inspires public confidence in the trial court’s decision because it allows for more transparency in the process. This decision allows everyone to see the reasoning for the judge’s decision, and it ultimately helps the appellate court when reviewing the case under an abuse of discretion standard. The appellate court will no longer have to guess what the trial court was thinking at the time probation was revoked, now the findings will on the record for the court to review.


[i] State v. Dagnan, 641 S.W.3d 751, 756, 757 (Tenn. 2022)

[ii] Id. at 757.

[iii] Id. at 752.

[iv] Id. at 753.

[v] Id.

[vi] Id.

[vii] Id. at 754.

[viii] Id.

[ix] Id.; See also Id. at 759 (“The transcript of the revocation hearing included six pages of oral findings by the trial judge. The trial court considered Defendant’s repeated violations, his addiction, and the nature of his most recent violation. It noted that, regardless of whether Defendant was properly or wrongfully discharged from the treatment facility, he ‘knew what was expected of him’ and deliberately absconded. Speaking to defendant expressly considered whether to “revoke you in full… or give you another chance or [into some kind of treatment facility.’ Ultimately the court emphasized the lack of success in giving the defendant multiple chances to comply with the terms of probation in the past and the seriousness of his deliberate failure to report back to jail in choosing to order Defendant ot serve his sentence in incarceration.”).

[x] Id. at 757.

[xi] Id. at 759.

[xii] Id.

[xiii] Id.

On June 4, 2018, Douglas Linvil

State of Tennessee v. Douglas E. Linville

State of Tennessee v. Douglas E. Linville, No. W2019-02180-SC-R11-CD (June 1, 2022).

Written By: Hunter Lindsey, Associate Editor

Tennessee Code Annotated § 39-17-432 heightened the penalty for drug offenses committed in “drug-free zones,” requiring that the sentence be subject to a one-level classification increase (i.e., Class D felony to a Class C felony) and required a sentence of at least the minimum time suggested by Tennessee’s sentencing guidelines. Drug-free zones were initially 1,000 feet areas around schools, but the Tennessee legislature added public parks to the statute in 2005 with the caveat that convictions near public parks were not subject to the one-level enhancement.

On June 4, 2018, Douglas Linville’s home was searched by police, who found various scheduled substances and drug paraphernalia. Linville’s home was within 1,000 feet of a drug-free zone, and a public park, subjecting him to heightened penalties under Tennessee law. Linville was convicted of five counts, three of which were relevant to this case: counts one and two were for possessing Schedule II controlled substances (methamphetamine and hydrocodone), and count three was for possessing a Schedule IV controlled substance (Xanax).

Counts one and two, given Linville’s criminal history, had a sentence range of 10-15 years. Linville was sentenced to 12 years imprisonment on both counts to be served concurrently. Count three was given two disparate sentences – a 12-year sentence at the sentencing hearing and an 8-year sentence on the written judgment. This occurred because the parties incorrectly informed the court that count three was a Class C felony like counts one and two when possession of Xanax is actually a Class D felony with a sentence range of 8-12 years.

Linville appealed his conviction, attacking the sufficiency of the evidence, and did not dispute his sentence. The Court of Criminal Appeals affirmed the convictions on this issue. However, Linville had identified the disparity in the sentence imposed by the trial court in person in comparison with the written judgment. The appellate court affirmed the sentence as well, reversing only to direct the trial court to correct the judgment and mark count 3 as a Class C felony. It justified this decision based on the one-level enhancement provision.

Linville appealed this decision, arguing that the appellate court misinterpreted T.C.A. § 39-17-432 and the legislature did not intend for drug convictions near public parks to be subject to either the one-level enhancement or the mandatory minimum requirement. While the appellate court addressed the former issue, Linville argued the latter issue was reviewable as a plain error.

The first issue in the case is the following: Does T.C.A. § 39-17-432’s one-level enhancement provision apply to drug offenses occurring within 1,000 feet of a public park? The Supreme Court of Tennessee held that the answer to this question is no.

T.C.A. § 39-17-432(b), which provides for a one-level enhancement, was amended in 2005 to prohibit any increase in incarceration as a result of that section where the drug offense was committed within 1,000 feet of a public park. Accordingly, Linville’s conviction for possession of a Schedule IV substance could not be sentenced as a Class C felony, as the appellate court held, but as a Class D felony, which had a range of 8-12 years, not 10-15.

The second issue in this case is the following: Does the mandatory minimum provision apply to drug offenses occurring within 1,000 feet of a public park? The Supreme Court of Tennessee held that the answer to this question is yes.

Because Linville did not challenge the mandatory minimum provision at the appellate level, the Supreme Court may only address this issue if it is a plain error. The plain error doctrine permits courts to consider issues not properly preserved if: (1) the record clearly reflects the error (2) a clear and unequivocal rule of law was breached, (3) a substantial right of the accused was adversely affected, (4) the issue wasn’t waived for a tactical purpose, and (5) justice requires the error to be considered.

The plain language of § 39-17-432 evinced an intent for mandatory minimum and enhanced sentences and the mandatory minimum provisions in subsections (c) through (e) were self-contained and unaffected by the modifications in subsection (b). Based on that language, § 39-17-432 contains no clear and unequivocal rule of law prohibiting the imposition of mandatory minimum sentences for drug offenses committed within 1,000 feet of a public park, and therefore the plain error doctrine doesn’t rehabilitate Linville’s failure to preserve any issue for appeal concerning the mandatory minimum provision.

Accordingly, because count three had a mandatory minimum of eight years and a suggested maximum of 12 years, the trial court’s sentence of 12 years imprisonment for counts one through three, served concurrently, was not in violation of T.C.A. § 39-17-432 and is affirmed.

This case demonstrates just how difficult it is for the plain error doctrine to win the day on appeal. Courts are hesitant to apply the plain error doctrine and will stop as soon as an element of the doctrine isn’t met, just as the Tennessee Supreme Court did in this case. Accordingly, attorneys need to be vigilant when looking for issues they foresee having any potential for appeal, even if it seems like a longshot. The Court in this case could have dived deeper into other issues related to mandatory minimum sentences, like the rule of leniency or any specific constitutional issues arising out of the Tennessee state constitution but could and would not do so because the defendant had not preserved the issue for appeal. While the Court noted that Linville was able to appeal any aspect of his sentence, it also noted that Linville’s failure to appeal, not object to it at the sentencing hearing, prevented deeper consideration of the mandatory minimum issue. Perhaps bringing up too many issues in one appeal risks wearing out the appellate court’s good will, but in this case, taking that risk could have resulted in a fundamentally different decision.