Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Menke

Court of Criminal Appeals of Tennessee, Nashville

May 21, 2018

STATE OF TENNESSEE
v.
ASHLEY N. MENKE

          Session February 13, 2018

          Appeal from the Criminal Court for Sumner County Nos. 925-CR-2015, 268-CR-2014 Joe H. Thompson, Judge

         On July 14, 2016, Ashley N. Menke, the Defendant, entered an open guilty plea in Case No. 925-CR-2015 to five felonies and three misdemeanors, including one count of theft in the amount of $1, 000 or more but less than $10, 000 (Count 9), and to a violation of probation in Case No. 268-CR-2014. The value of the property taken in Count 9 was exactly $1, 000, and the Defendant was released on bail for felony offenses in Counts 3, 4, 5, and 6 at the time she committed the theft in Count 9. Following the December 2, 2016 sentencing hearing, the trial court took the matter under advisement without sentencing the Defendant. On January 1, 2017, the Public Safety Act of 2016 became effective. Section 5 of the Public Safety Act "deleted and replaced" Tennessee Code Annotated section 39-14-105(a), the "grading of theft" statute. Theft in the amount of $1, 000 or less committed after January 1, 2017, is now graded as a Class A misdemeanor. In its March 10, 2017 sentencing order, the trial court imposed an eleven month and twenty-nine day sentence in Count 9 based on the criminal savings statute, Tennessee Code Annotated section 39-11-112, and ordered the sentence to be served concurrently with the effective three-year sentence for the other seven counts. The judgment states that the conviction offense is a Class D felony. We hold that the criminal savings statute does not apply and that the trial court erred in sentencing the Defendant in Count 9 to a concurrent sentence of eleven months and twenty-nine days because of the following: (1) the General Assembly did not specifically indicate that Section 5 of the Public Safety Act operated retrospectively so the statute is presumed to operate prospectively; (2) "the value of the property or services obtained" is an essential element of the offense of theft; and (3) the legislature changed an essential element of, not the sentence for, Class A misdemeanor theft, Class E felony theft, and Class D felony theft. We affirm the judgment of conviction for the Class D felony theft in Count 9, vacate the sentence in Count 9, and remand the case to the trial court for resentencing within the applicable range for Class D felony theft and for consecutive alignment of the sentence pursuant to Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C).

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as to Conviction, Reversed as to Sentencing; Case Remanded for Resentencing

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Ray Whitley, District Attorney General; and Eric Scott Mauldin, Assistant District Attorney General, for the appellant, State of Tennessee.

          Beth A. Garrison, Hendersonville, Tennessee, for the appellee, Ashley N. Menke.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         Procedural and Factual Background

         The Sumner County Grand Jury issued a nine-count indictment in Case No. 925-CR-2015 charging Ashley N. Menke, the Defendant, with two counts of Class A misdemeanor theft of property (Counts 1 and 2), one count of Class E felony forgery of a check (Count 3), one count of Class C felony theft of property (Count 4), one count of Class E felony forgery of a document (Count 5), one count of Class E felony criminal simulation (Count 6), one count of Class E felony false entry of a government record (Count 7), one count of Class B misdemeanor criminal impersonation (Count 8), and one count of Class D felony theft (Count 9). Specifically, the indictment for Count 9 stated that the Defendant "did unlawfully obtain and exercise control over property, to-wit: cash, of the value of $1, 000.00 or more, belonging to [the victim], said property being taken without the owner's effective consent and with the intent to deprive the owner thereof[.]"

         Because Count 3 charged the Defendant with forging the signature of Criminal Court Judge Dee David Gay to a document purportedly releasing her from probation, Judge Gay recused himself from the case. An order was entered on September 18, 2015, assigning Chancellor Louis W. Oliver, III to "hear the case to final disposition."

         The Defendant filed a "Petition for Waiver of Trial by Jury and Request for Acceptance of Plea Resulting in Conviction" ("the plea petition"), requesting to plead guilty to a probation violation in Case No. 268-2014 and to Counts 1, 2, 3, 4, 5, 6, 8, and 9 in Case No. 925-2015.[1] For Count 9, the plea petition listed the "conviction offense" as "theft over $1, 000[, ]" the "range" as "2-4" years, and the release eligibility percentage as "30[.]" The transcript of the January 14, 2015 plea submission hearing reflects that the State presented a factual basis for Count 9 in which the Defendant told the victim that she worked for Joe Johnson Bail Bonding and that she would be able to obtain the release of the victim's girlfriend if he paid her $1, 000. The victim gave the Defendant $1, 000, but the Defendant was not able to get the victim's girlfriend out of jail because she was not a bail bondsman. When asked if she was "guilty of theft of property, in [Count 9] it was $1, 000[, ][sic]"the Defendant answered "yes." The trial court informed the Defendant that "theft of property over $1, 000 [sic] but less than $10, 000 is a class D felony, and it carries a penalty of two to four years[.]" We note the statute provided Class D felony status for theft equal to $1, 000.00, and did not set a minimum of "over $1, 000.00" as stated by the trial court. On July 14, 2016, Chancellor Oliver signed a document titled "Plea" from the Minutes of the Criminal Court of Sumner County for July 14, 2016, which was filed on July 28, 2016. The "Plea" stated that the Defendant entered an open plea of guilty to "Theft under $500(x2), Forgery, Criminal Simulation, Criminal Impersonation and Theft over $1, 000 and Probation Violation in Case #268-2014" and that Count 7 was nolled by the State. Shortly thereafter, the Defendant filed a motion for Chancellor Oliver to recuse, which was granted. By order entered on August 26, 2015, Circuit Judge Joe H. Thompson was assigned to hear the case.

         After the sentencing hearing on December 2, 2016, the trial court took the matter under advisement and asked the parties to submit briefs. On January 3, 2017, the State filed its "Sentencing Brief, " in which it asked that the Defendant be sentenced from two to four years for Class D felony theft in Count 9 and that the sentence run consecutively to the Defendant's sentences in Counts 3, 4, 5, and 6. In her February 3, 2017 response to the State's brief, the Defendant raised for the first time a claim that Tennessee Code Annotated section 39-11-112 required the trial court "to sentence the Defendant under the most recent theft classifications" because "the subsequent [classification] provides for a lesser penalty." In discussing the amendment of Tennessee Code Annotated section 39-14-105(a), the Defendant claimed that "[n]ot only is this re-classification of the Defendant's Count 9 offense of [t]heft of [p]roperty over $1, 000 pertinent in that it reduces [the Defendant's] total potential exposure, it is also pertinent because it reduces Count 9 to a misdemeanor."[2] The Defendant also claimed that "[d]ue to the new theft classifications which went into effect on January 1, 2017, Count 9 is no longer a felony[]" and therefore Tennessee Code Annotated section 40-35-115 and Tennessee Rules of Criminal Procedure Rule 32 did not mandate consecutive sentencing.

         On March 10, 2017, the trial court issued its order. After finding that the Defendant was released on bail when she committed the theft in Count 9 was an enhancement factor applicable to the Defendant's case, the trial court stated:

The Defendant bonded out of jail on September 10, 2015[, ] and on the following day, while she was on bond, the Defendant stole $1, 000.00 from [the victim], as charged in [C]ount 9 of the indictment. Despite the foregoing, the Court finds the enhancement factor is inapplicable to [C]ount 9, because the offense of theft of property over $1, 000, which was previously classified as a D felony, has been reclassified as theft of property $1, 000 or less, a Class A misdemeanor.

         The trial court reasoned that the "application of enhancement factor [] would violate the ex post facto prohibition. See State v. Pearson, 858 S.W.2d 879, 882 (Tenn. 1993) (Tennessee Constitution's ex post facto prohibition is applicable to laws that change punishment)."[3] The court sentenced the Defendant to eleven months and twenty-nine days on Count 9 and ordered that sentence to run concurrently with the effective three-year sentence for the other seven counts. The effective three-year sentence in Case No. 925-CR-2015 was ordered to run consecutively to the Defendant's four-year sentence in Case No. 268-CR-2014, in which her probation was revoked as part of the plea agreement. The judgment for Count 9 shows the "Conviction Offense" as "39-14-105 - Theft of Property - $1, 000 - $10, 000[, ]" the conviction class as "D" felony, and the sentence length as "11 Months and 29 Days[.]" The court revoked the Defendant's probation in Case 268-CR-2014 but reinstated probation based on time served for the violation, ordered that the Defendant complete a six month drug program at The Next Door, and ordered the sentence to be served on probation following completion of the drug program.

         On March 29, 2017, the trial court entered a "Corrected Order" stating that Count 9 must be punished as a Class A misdemeanor pursuant to the criminal savings statute, Tennessee Code Annotated section 39-11-112.

         The State filed a "Motion to Correct Illegal Sentence[, ]" which it later withdrew, and then timely filed its notice of appeal.

         Analysis

         The State claims that the trial court improperly sentenced the Defendant to eleven months and twenty-nine days and erred in ordering the sentence for Count 9 to be served concurrently with the three-year sentence for other felonies. The Defendant claims that the sentence was properly imposed. We agree with the State.

         Theft of Property

         "A person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner's effective consent." Tenn. Code Ann. § 39-14-103(a). "This section is the primary generic theft statute." Tenn. Code Ann. § 39-14-103, Sentencing Comm'n Cmts. "[T]he crime [of theft] is complete when a person takes property, without the owner's consent with the intent to deprive the owner of the property." State v. Amanns, 2 S.W.3d 241, 243-44 (Tenn. Crim. App. 1999).

         Value of Property as an Element of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.