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State v. Price

Supreme Court of Tennessee, Jackson

July 22, 2019

STATE OF TENNESSEE
v.
A. B. PRICE, JR. AND VICTOR SIMS

          Session April 4, 2019

          Appeal by Permission from the Court of Criminal Appeals Circuit Court for Henry County Nos. 40CC1-2017-CR-15680, 40CC1-2016-CR-15664 Donald E. Parish, Judge

         In early January 2017, Defendant A. B. Price, Jr., attempted to plead nolo contendere to two counts of sexual battery, and Defendant Victor Sims attempted to plead guilty to three counts of aggravated assault.[1] Both Defendants had reached plea bargains with the State, and each of the pleas included a term of probation. The trial court declined to accept the pleas and requested the parties to return for a later hearing to present proof and argument regarding the constitutionality of certain portions of the Public Safety Act of 2016 ("the PSA"), which has the practical effect of authorizing the Tennessee Department of Correction ("DOC") to address at least some probation violations, a role up to this point reserved exclusively to trial courts.[2] After the hearing, the trial court ruled portions of the PSA facially unconstitutional on grounds of separation of powers, due process, and equal protection. The trial court subsequently accepted the Defendants' pleas and inserted in each judgment the following special condition: "The probated portion of the Defendant's sentence is not subject to the Public Safety Act; rather, the Defendant shall be subject to the rules and regulations governing probation applicable through pre-existing law (law in effect prior to January 1, 2017)." The State appealed, and the Court of Criminal Appeals affirmed the trial court's judgments. We granted the State's application for permission to appeal. We hold that the constitutionality of the PSA provisions at issue was not ripe for consideration by the trial court. Accordingly, we reverse the judgments of the trial court and the Court of Criminal Appeals. We remand this matter to the trial court for further proceedings consistent with this opinion.

         Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed; Remanded to the Trial Court

          Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Jonathan David Shaub, Assistant Solicitor General; Matthew F. Stowe, District Attorney General; and Paul Hessing, Assistant District Attorney General, for the appellant, the State of Tennessee.

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

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

          Jeffrey S. Bivins, C.J., delivered the opinion of the Court, in which Cornelia A. Clark, Sharon G. Lee, Holly Kirby, and Roger A. Page, JJ., joined.

          OPINION

          JEFFREY S. BIVINS, CHIEF JUSTICE

         Factual and Procedural Background

         Defendant A. B. Price, Jr., was charged with two counts of sexual battery, each offense alleged to have occurred in the spring of 2015. Defendant Price and the State reached a plea bargain calling for Defendant Price to plead nolo contendere to both charges with consecutive sentences of five years to be served on supervised probation.

         Defendant Victor Sims was charged with three counts of attempt to commit first degree murder, all offenses alleged to have occurred on or about July 8, 2016. Defendant Sims and the State reached a plea bargain calling for Defendant Sims to plead guilty to three counts of aggravated assault with concurrent sentences of eight years, suspended to supervised probation after service of one year in confinement.

         Both Defendants sought to enter their negotiated pleas in early January 2017. Before accepting the pleas, the trial court, sua sponte, expressed concern about the provisions of the PSA that became applicable on January 1, 2017, and that could impact the administration of the probated portions of the Defendants' sentences. Apparently without any request from either party, the trial court requested the parties to return at a later date to offer proof and argument regarding potential constitutional issues with the PSA including whether the PSA violated the separation of powers doctrine and whether it violated the Defendants' due process and equal protection rights.

         On February 10, 2017, the trial court heard testimony from a probation officer based in Henry County and also heard argument from the prosecutor, the attorney representing Defendant Price, and the attorney representing Defendant Sims. Counsel for the Defendants both argued that the provisions of the PSA calling for the DOC to impose graduated sanctions on probationers committing certain violations were facially unconstitutional.[3] The prosecutor disagreed. On February 16, 2017, only six days after the hearing, the trial court filed a forty-four page document titled "Conclusions of Law and Order" in which it concluded that provisions of the PSA applicable to probation violations were facially unconstitutional. The trial court's order included the following:

The decision reached in these cases will leave in effect the statutory process shared by judges and probation officers for the management of alleged violations of probation which pre-existed January 1, 2017.
Judgments entered in these cases and in future similar cases shall incorporate the holdings herein by reference as a special condition, pending appellate review.

         On March 13, 2017, the trial court held plea hearings on the Defendants' cases and accepted the negotiated pleas. On each of the Defendants' respective judgment orders, the trial court included as a special condition the following: "The probated portion of the Defendant's sentence is not subject to the Public Safety Act; rather, the Defendant shall be subject to the rules and regulations governing probation applicable through preexisting law (law in effect prior to January 1, 2017)."

         The State appealed on the basis of the special condition and the underlying determination by the trial court that the PSA was, at least in part, facially unconstitutional. On review, the Court of Criminal Appeals affirmed the trial court's judgments, with one judge dissenting. State v. Price, No. W2017-00677-CCA-R3-CD, 2018 WL 3934213, at *17-18 (Tenn. Crim. App. Aug. 14, 2018), perm. app. granted (Tenn. Dec. 5, 2018). We granted the State's application for permission to appeal.

         Standard of Review

         Because we are considering only questions of law in this appeal, our review is de novo with no presumption of correctness afforded to the conclusions reached below. See State v. Daniel, 552 S.W.3d 832, 835 (Tenn. 2018).

         Analysis

         Probation and the PSA

         Prior to the PSA, a probation officer confronted with a probationer who was violating the terms of her probation could seek a probation violation warrant from a judge and then prosecute the warrant before a judge in an evidentiary hearing. The probationer was entitled to contest the allegations and was entitled to be represented by counsel. If, based upon the preponderance of the evidence, the trial court concluded that the probationer had violated the conditions of her probation, the trial court was authorized to determine the appropriate remedy, up to and including revoking the probationer's suspended sentence and ordering the probationer to complete all or a portion of her remaining sentence in confinement. In short, both the determination of probation violations and the imposition of punishments for established violations were left to the trial court. If the trial court revoked the probationer's probation, the probationer had the right to appeal to the Court of Criminal Appeals. See generally Tenn. Code Ann. § 40-35-311 (2014 & Supp. 2018).

         Effective January 1, 2017, the PSA set forth an alternative methodology for evaluating and punishing certain probation violations. Specifically, Tennessee Code Annotated section 40-28-303 provides as follows:

(a) The [DOC] shall adopt a single system of graduated sanctions for violations of the conditions of [probation]. The system shall set forth a menu of presumptive sanctions for the most common types of [probation] 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 risk level, 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 [probation]. 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 [DOC] 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 [DOC] shall establish by policy an administrative process to review graduated sanctions contested by supervised individuals under [Tennessee Code Annotated section] 40-28-305. The review shall be conducted by the chief supervision officer, who shall be impartial and trained to hear ...

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