### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 8, 2002 Session

STATE OF TENN ESSEE v. ROBERT A . SISSON

Direct Appeal from the Criminal Court for Shelby County No. 00-07640 Carolyn Wade Blackett, Judge

No. W2001-01666-CCA-R3-CD - Filed Mar ch 4, 2003

The appellant, Robert A. Sisson, pleaded guilty to third offe nse driving under the

influence of an intoxicant a

nd was se ntenced to eleve n months and twenty-nine da ys with actual incarceration for 120 day s follo wed b y pr obation. T

he appellant, pur suant to Te nnessee Rule of Ap

pellate Procedure 37(b)(2)(i), reserved a ce rtified question of law for appeal t o this cour

t. That que stion is whether the 1998 amendments to Tennessee Code Annotated sec tion 55 -10-403(a)(1) rega rding penalties for D.U. I. c onviction s violate t he ex-post

factoand/or

due process clauses of the federa l and state co nstitutions . Those a mendment s increa se fro m t en t o t wen ty year s t he a ge o f pr io r D. U.I. convictions that may be used to enha nce D.U.I. pena

lties. Because we f

ind that th e defendant committed the instantoffense after th e effe ctive da

te of the amen dmen

ts in q uesti on, w e fin d no expost facto or due proc ess viola

tions occurred in

this case. The judgment of conviction is therefore affirmed.

Tenn. R. App.P. 3; Judg ment of t he Trial Court Affirm

ed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVI D G. H AYES and A LAN E. G LENN , JJ., joined.

Joseph S. Ozment, Memphis, Tennessee, for appellant, Robert A. Sisson.

Paul G. Summers, Attor ne y General & Repor ter; Br aden H. B oucek, A ssistant A ttorney Genera l; W illiam L. Gib

bons, Distr

ict Attorn ey Genera l; and JamesPowell, As sistant Dis tric t Attorne y General, for appellee, State of Tenne ssee.

OPINION

On August 2 2, 1999, th

e appell ant commit

ted the D. U.I. offense

that is t he subject of this appeal. At the time of the c ommission of t he o ffe nse th e ap pel lan t h ad t wo s epa rat e D. U.I. convictions based on guilty ple as entered in court on December 7, 1987, and Februar y 28, 1996. On July 9, 2001, the appellant pleaded guilty to D.U.I. third off

ense and, as no ted earlier, reserved a certifi ed questi on of law , to wit:-2- Whether the provisions of T.C.A. 55-10-4 03 [sic ] as applied to the defendant’s prior convictions on February 28, 1996 and December 7, 1987, operate as a violation of due process and/or an ex post fac to law in eleva

ting or e nhancing the curr ent o ff ense, committed on August 22, 1999, to athird offense DUI, pa rticularly whe

re the law under whic h the Defendant was previously convicted provided convictions for enhancement purposes up to ten (10) ye ars as opposed to a maximum of

twenty (20) and /or wheth er the current o ffense should be treated as a third offense.

Prior to entry of

his guilty plea on July

9, 2001, th

e appell ant had f

iled a moti on to dismiss that portion of

the indic tment elevating t his offe nse to a third offense. The motion was based on the grounds noted above. At the hearing on the motion to dismiss the appellant testified that when he pleaded guilty to D.U.I . in 1987 and 1996 he was advised by both his attorneys and the trial judg es that those con

victions c ould only

be used f

or ten (1 0) y ears to

en ha nc e a ny s ubs equ ent D.U .I. conviction. He also testified that he probably would not have entered guilty

pleas in 1997 and 1999 had he known t

he law mig

ht chang e to perm

it the use for sentence enhancement of those convictions for twenty (20) years. The trial court denied the appellant’s motion.

DISCUSSION

Offenders who commit multiple D.U.I. offens es are subject to having their sentence s enhanced. Tenn. Code Ann. § 55-10-403(a)(1) (1997 & Supp. 2001). Under the present version of the c ode, in order to enhance the defenda nt’s sentence as a multiple offender, the previ ous D.U.I

. offense must have occurred within ten yea rs of the prese nt violation. Tenn. Code Ann. § 55-10- 403(a)(3) (1997 & S upp. 2001) . If t he defe ndant’s r ecord sa tisf ies this con dition, then “every

con viction fo r a vi ol at io n o f § 55 -1 0- 40 1, wi th in te n ( 10 ) ye ar s o f t he im me di at el y preced in g violation shall be considered in determining the number or prior offenses.” Tenn. Code Ann. § 55- 10-403(a)(3) (1997 & Supp. 2001). The prese nt version of

the co de spe cific ally forb ids t he usa ge of “a conviction occurring more than twe nty (20) y ears from the date of

the instant conviction” for enhancement

purposes. Tenn. Code Ann. § 55-10-403(a)(3) (1997 & Supp. 2001). Whereas under the present

statute, t he defe ndant’s p rior D.U .I. c onviction s could be consider ed within t

wenty years if some conditions were sa

tisfied, p ursuant t o the 1987 version, under no condition may convictions occurring after ten y ears be considered. Compare Tenn. Code Ann. § 55-10-403(a)(3) (1997 & Supp. 2001) withTenn. Code Ann. § 55-10-403(a)(3) (1987).

Alth ough the defendant claims that the amendments to Section 55-10-403(a)(3) violate h is due process rights to fair notice and the ex post facto provisio ns of the f ederal and state constituti ons, it appears that this Court has repea tedly rejec ted such claims. State v. Janice Carol Biskner , No. E2000-01440-CCA-R3-CD, 2001 WL 1408510 ( Tenn. Cr

im. App. at Knoxville, Nov. 13, 2001); Statev. Clever , 70 S.W.3d 77 1, 776 (Te nn. Crim. A

pp. 2001) . Moreove

r, it is well established that statutes such as the one at issue here merely enhance thesentence for the trigge ring offense rather than punish the prior offenses and therefore do not violate constitutional provisions concerning due-3-

processor ex post facto laws. State v. Johnson , 970 S.W.2d 500, 505 (T enn. Crim. App. 1996); State v. Will

iams , 675 S.W.2d 499, 502 (Tenn. Crim. App. 1984).

The conviction r endering the defendant subject to third offe nder D.U.I. sentenc ing was entered on July 9, 200 1. The defendant makes no c laim that th

e advice he rece ived fro m both counsel and the courts at the time he enter ed his pri or guilt

y pl eas was inaccur

ate at the time. The se pr ior convic tions cannot act “to freeze the law. . . voiding subsequent leg islation regarding future crimes.” Janice Carol Biskner , 2001 WL 1408510, at *8.

The judgment of the trial court is AFFI RMED.

___________________________________ JERRY L. SMITH, JUDGE