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State v. Davis

Court of Criminal Appeals of Tennessee, Knoxville

April 24, 2017

STATE OF TENNESSEE
v.
THOMAS R. DAVIS

          March 21, 2017 Session at Lincoln Memorial University[1]

         Appeal from the Criminal Court for Knox County No. 103484 G. Scott Green, Judge.

         A Knox County jury convicted the Defendant, Thomas R. Davis, of simple possession of a controlled substance; simple possession of a controlled substance, third offense; and misdemeanor evading arrest. Following a sentencing hearing, the trial court sentenced the Defendant to eleven months and twenty-nine days each for simple possession of a controlled substance and evading arrest and one year for simple possession of a controlled substance, third offense. The trial court merged the drug convictions and ordered the Defendant to serve his sentences concurrently, for an effective sentence of one year. On appeal, the Defendant contends that due to an amendment to Tennessee Code Annotated section 39-17-418(e) that went into effect prior to the sentencing hearing, he did not qualify for enhanced punishment for simple possession of a controlled substance based on prior convictions. We conclude that the amendment to Tennessee Code Annotated section 39-17-418(e) controls and that, as a result, the Defendant did not qualify for enhancement punishment for his simple possession conviction based on his prior convictions. Accordingly, the judgments of the trial court are reversed in part and affirmed in part. The Defendant's conviction for simple possession of a controlled substance as a Class E felony as reflected in the judgment for count 12 is dismissed, and the case is remanded to the trial court for entry of a corrected judgment reflecting the $2, 500 fine imposed by the jury in count 11 and for further proceedings in accordance with this opinion.

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

          Keith Lowe, Knoxville, Tennessee, for the appellant, Thomas R. Davis.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Timothy L. Easter and J. Ross Dyer, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         The Defendant was indicted on three counts of unlawful possession of a firearm; one count of aggravated burglary; one count of employing a firearm during the commission of a dangerous felony; one count of employing a firearm during the commission of a dangerous felony after having been convicted of a dangerous felony; four counts of aggravated assault; one count of simple possession of a controlled substance; one count of simple possession of a controlled substance, third offense; and one count of misdemeanor evading arrest. Although the transcript of the trial is not included in the appellate record, the indictment alleged that the offenses occurred on March 11, 2014, and that the controlled substance was marijuana. The trial court later dismissed the three counts of unlawful possession of a firearm based upon the State's motion.

         A jury convicted the Defendant of simple possession of a controlled substance and misdemeanor evading arrest and acquitted him of the remaining charges. Following a bifurcated hearing, the jury found that the Defendant had two prior convictions for possession of a controlled substance and convicted him of simple possession of a controlled substance, third offense.

         At the time of the offenses, Tennessee Code Annotated section 39-17-418 provided that "[i]t is an offense for a person to knowingly possess or casually exchange a controlled substance" and that such a violation was a Class A misdemeanor. T.C.A. § 39-17-418(a), (c) (2010). Where the defendant had two or more prior convictions under section 39-17-418, the offense was a Class E felony. Id. § 39-17-418(e) (2010). Section 39-17-418(e) was amended effective July 1, 2016, to provide that "[a] violation of this section is a Class E felony where the person has two (2) or more prior convictions under this section and the current violation involves a Schedule I controlled substance classified as heroin." 2016 Tenn. Pub. Acts, c. 876, § 12.

         During the sentencing hearing on July 8, 2016, the Defendant asserted that the recent amendment to section 39-17-418(e) applied and that, as a result, his conviction for simple possession of a controlled substance, which involved marijuana, no longer qualified as a Class E felony but instead was a Class A misdemeanor. The State responded that the amendment modified the elements of simple possession of a controlled substance, third offense and did not provide for a lesser penalty for commission of simple possession of a controlled substance, third offense. The State maintained that as a result, the statute in effect at the time of the commission of the offense controlled. The trial court agreed with the State and found that the amendment redefined the elements of simple possession of a controlled substance, third offense and did not provide for a lesser penalty for the offense. Accordingly, the trial court found that the Defendant was subject to the statute in effect at the time of the offense.

         The trial court sentenced the Defendant to eleven months and twenty-nine days each for the simple possession and evading arrest convictions and to one year for simple possession of a controlled substance, third offense. The trial court merged the conviction of simple possession of a controlled substance into the conviction for simple possession of a controlled substance, third offense. The trial court ordered the Defendant to serve his sentence for simple possession of a controlled substance, third offense concurrently with his sentence for evading arrest but consecutively to his sentences ...


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