# FILED
October 18, 1996 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY SESSION,

1996
STATE OF TENN ESSEE, ) C.C.A. NO. 03C 01-9511-CC-00352 ) Appellee, ) ) ) SEVIER COUNTY VS. ) ) HON. BEN W. HOOPER, II JOHN WAYNE SL

ATE, ) JUDGE

) Appellant. ) (Sentencing)

FOR THE APPELLANT : FOR THE APPELLEE : EDWARD C. MILLER CHARLES W. BURSON Public Defender Attorney General and Repor ter P. O. Box 416 Dandridge, TN 37725-0416 HU NT S. BR OWN Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243 AL SCHMUTZER, JR. District Attorney General STEVEN R. HAWKINS Assistant District A

ttorney Sevierville, TN 37862
OPINION FILED ________________________ AFFIRMED IN PART; REVERSED AND REMANDED IN PART JERRY L. SMITH, JUDGE-2- 

## OPINION

Appellant

John Wayne Slate appe als the judgm ent of the S evier Co unty Criminal Court imposing a twenty-f ive year sentence for his second degree murder convi cti on. Ap pe llant pr esents the following issues for review: (1) whetherthe trial c ourt er red in re fusing to expu nge h is convicti on for first degree murder and (2) whet her his sentence is excessive.

After a review of the reco rd, we affirm the judgment of the trial court with regard to the expunct ion issuebut remand thi s case for r esentencing consistent with thi s opinion.

I. FACTUAL BACKGROUND On Augu st 12, 1 988, a Sevie r Coun ty CriminalCourt jury convicted Appellant

of the fi rst degree murde r of D avid Jackson. Under the Tennessee Senten cing Refo rm A ct of 19 82, Ap pellan t receive d a se ntenc e of lif e imprison ment, enhance d by five years for use of a fi rearm in the co mmission of
a felony. T he trialcourt order ed that the sentence run consecut ive to a t hree yearsenten ce for attem pted jail esc ape. On direct appeal , this Court affi rmed the judgment of the trial cou rt. See State v. S late , No. 101, 1989 WL 130712, at*4 (Tenn. Crim. A pp. No v. 1, 198 9). Appe llant then filed a petition for postconvic tio n r elief. This C ourt aga in affirmed the judgm ent of the tria l court with regard to the fi rearm enhancement and the atte mpte d jail escape convict ion but reversed the judgm ent of the tria l court with re gard to th e first d egree m urder convict io n. The Court held t hat the evi dence only established second degree-3-

murder and remanded the case to the trial cou rt for impo sition of an approp riate sentence and a judgment of conv iction
. See Slate v. Sta te , No. 03C01- 9201- CR000 14, 1994 W L 1491 70, at *8 (T enn. C rim. App . Apr. 27, 1 994), perm. app . denied , (Tenn. Oct. 24, 1994). Upon remand, the tri al court ga ve Appellant

the opportu nity to be resentenced under the 1982 sentencing act or the 19 8 9 sentencing act. App ellant, throu gh cou nsel, cho se to be resentenced under the Tennessee Sentenc i ng Reform Act of 1989. The trialcourt then s entenced Appellant

to twenty-five ye ars in the T ennes see De partme nt of Corre ction, a term to run con secutive to his firearm enhan ceme nt and to his attempted j ail escape sentence. During th is senten cing hea ring, t he tri al court r efused to expunge Appellant’s con viction for first degree mu rder.

II . EXP UNCTION OF FI RST DEGREEMURDER CONVI CTION Appellant

first alleges t hat the trial cour t erred in refus ing to e xpung e his convicti on for first degree mu rder. Appellant ar gues that t he first

degree murder convicti on sh ould have been expunged because t his Court r eversed the convicti on and re ma nded to the t rial cour t with i nstructi ons to enter a judgment for second d egree m urder.
Tennessee’s expunct ion stat ute provi des the fol lowing: All public r

ecords of

a person who has been chargedwith a mis deme anor or a fel ony, and which c harge has been dismissed, or a no true bi ll ret urned by a gran d jury, or a verdictof not guilty returned by a jury or a conviction which has by appeal been reversed , shall , upon peti tion by t hat person to the court

having jurisdict ion in such pr evious acti on, be removed and destroyed without cost to su c h person . . . .-4-

Tenn. Code Ann. § 40-32-101(a) (1) (Supp. 1996)(emphasis added). In denying Appe llant’s request for expunction, the tri al court of fered the foll owing rational e: [I]n eff e ct, what has

happened is the j udgment of the trialcourt was rev ersed as to t he convicti on for fi rst degree murde r, and then they s ay the case i s remanded forthe purp ose of rese ntencing and the entry of a judgmen t of conviction for secon d degree m urder. To me, what’s bas i cally happen ed would be the equivalent

of bein g indic ted for fir st de gree murder, t he jury being instru c ted as to second deg ree murder and poss ibly lesser i ncluded, ot her lesser i ncluded offenses , and the j ur y in fact

findingsecond degree murder. And I think in that situati on I don’t believe y

ou would be entitl ed at all to have the records expunged. That’ s just par t of the process, You get indicted for a higher degree of crime and convicted of

a lesser degr

ee. We agree with t he foregoing r ationale. Appellant’ s second degree murder conviction, f

or all intents and purposes, simply replaces hi s first degree murder convicti on. The expun ction statute appears t o provide r

elief on ly in situations where, for the r

easons stated t herein, criminal char ges failto r esult in any c o nvicti on. See, e.g. , State v. Liddle , No. 01C01-9508-CR-00280, 1996 WL 275012, at *1 (Te nn. C rim. App. M a y, 24, 199 6); State v. McC ary , 815 S.W.2d 22 0, 222 (Tenn. Crim. App. 1991). Here, Appellant’ s conviction has b ee n reversed and re duce d but n ot reve rsed a nd dis miss ed, as we be li eve t he expunction statute an ticipate s. We know of no c ase s uppo rting A ppella nt’s propositi on that his

first degree murderconvicti on should be expunged because it was ulti mately reducedto second degree murder. Theref ore, we concl ude that the trial cou rt properly d enied A ppellant’s reques t for expun ction.

III . SENTENCI NG Appellant

next all eges thathis sentence is excessive. Without addressing any of the substantive issu es presen ted by Appe llant, we turn to the sentencing-5-

p rinciple addressed in State v. Pearson , 858 S.W.2d 879 (Tenn. 1993)

. According to Pearson , [I]n order to com ply with the ex post facto pro hib itions of the U.S. and T ennesse e Constitutions, tri a l court j udges impo sin g sentences after the effective date of the 1989 statute, forcrimes comm itted prior the reto, mu st calculate the appropriate sentence under both the 1982 statute and the 1989 statute, in the ir entire ty, and then impose the l esse r sentence of t he two. The pract ice of commingli ng the two laws and al lowing thedefendant thebenefit of the most favorabl e provisi ons of each is confus ing, and, as the State points out , could res ult in the defendant receivi ng a le s sersenten ce than is authoriz ed by eith er Act in its entirety. The prohibition against ex post facto laws in bo th the Unite d St a tes an d the T enne ssee Cons titutions is satisf ied by determini ng the appropri ate sen t ence under each statute a nd imposing the l es ser o f the t wo sentences. Id. at 884. Here, the record r eveals that

the tri al court failed to calculate Appe llant’s sentence under both sentenci ng acts. T he Sta te con cede s that th is failure ma y require a reman d. W e believe th at it does.
According ly, this case is remanded to the trialcourt for sentencing i n light of Pearson . If either part y is dis satisf ied with t he sentence imposed by the trial court, the dissat isfiedparty may appealas of right to this Court . The judgment of the trial court

with regar

d to the expunct ion issue i s affirmed.

____________________________________ JERRY L . SMI TH, J UDGE CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JOHN K. BYERS, SENIORJUDGE