### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 10, 2001 Se ssion
STATE OF TENNESSEE v. DAVID M. BLACK Appeal from the Circuit Court for Sumner County No. 20329-C Clara W. Byrd, Judge

No. M2000-02935-COA-R3-CV - Filed June 25, 2002

Petitioner soughta second restoration of citizenship rights after his sentence for a felony conviction expired. The State opposed the motion primarily on the basis of Mr. Black’s pre-conviction conduct and the fac t he had pr

eviously had his rights restored. The trial court denied restoration of the right to hold public of fice but restore d the righ

t to vote. W

e affir m the rest oration o f the righ

t to vote and vacate the order denying the right to seek and hold public off ice. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in Part, Vacated in Part, and Remanded
P ATRIC IA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and J. S. D ANIEL , S P
. J., joined. Darrell L. Scarlett, Murfreesboro, Tenne ssee, for the appellant, David M. Black.
Paul G. Summers, Attorney Gen e ral and Reporter; Thomas E. Williams, III, Assistant Attorney General; for the appellee, State of Tenne ssee. OPINION
I. Facts
In 1983, Mr. Black was convicted on two coun ts of selling a contr olled subs tance. A s a result of his felon y convict ions, Mr. Bl ack wasrender ed infam ous and los t his citiz enship ri ghts.
In 1993, Mr. Black ran for and was elected a s a city coun cilman in Gallatin, Tennessee; however, in his qualifying papers, he stated that he had never bee n convicted of a felony. As a result1 At the heari ng, a chancer y court deci sion decidi ng Mr. Blac k’s s uit to be a ll owed to t ake hi s se at on t he
cou ncil was int

roduced, but i t i s not

incl uded in t

he recor d on appeal . I n tes ti fying about that court deci sion, Mr. Bl ack agreed it had upheld his di squali ficat ion from office. -2- of this statement, Mr. Black was never certified as the winner

. 1 On December 10, 1993, Mr. Black’s rights of citizenship were fully restored. Subsequently, he ran for and was elected to the office of councilman.
While serving as a councilman, Mr. Black also served a s aprofessional bondsman in the S umner County Criminal Courts . In Marc h of 1997, Mr. Black

was cha rged by indictment wit h forgery, a class “E” felony, in violation of Tenn. Code Ann. § 39-14-114, a nd making a false statement in obtaining a surety bond, a class “A” misdemeanor, in violation of Tenn. Code Ann. § 39-14-148. The jury f

ound Mr. Bl ack guilt

y on both charges on October 7, 1997. He was sentenced to 11 months, 29 days for his conviction for making a false statement, all of which was to be served on probation. As a result of the forgery conviction, Mr. Black rec eived two (2) years, but was placed on a community-basedalternative in lieu of the penitentiary. The felony forger y conviction rendered Mr. Black infamous for the second time, and he a gain lost c itizenshi

p rights, to

the extent mandated by statute.
After his maximum sentence expired, Mr. Black petitioned the Sumner County Circuit Court for the resto ration of his citizens hip rights. The petition was granted without a hearing. However, the District A

ttorney G eneral (“State ”) filed

a Motion to

Set Aside the Order

because he was not notified by the trial court of the petition as mandated by Tenn. Code Ann. § 40-29-105(c)(4)(A) and, therefore, could not oppose it. The trial court granted the Motion to Set Aside the Order and order ed a hearing.
The petiti o n was heard by a special judge, appointed via interc hange. At the hearing Mr. Black presented character testimony from Mr. Brinkley, a former school teacher, who testified that Mr. Black hadbeen an

asset to th

e community since his conviction. Mr. Black testified on his own behalf and addit ionally called Be th Robertson, assistant coordinator for the Tennessee Division of Election s. Ms. Robertson testified regarding a printout from the Division of Elections which listed all felons in Tennessee who had twice been granted a restoration of citizenship rights. Upon cro ssexamination, it was established that the list did not reflect that rights had been restored by a cour t, after a change in the law in 1996, to any convicted felon for a second time. The State relied on the testimony of Special Agent Richard Stout of the

Tenness ee Bure au of Inv estigatio n (“TBI” ), as well as vario us exhibits related to the prior felony convictions, and the previously filed petition for restoration of rights. The testimony related to circumstances surrounding the offense for which Mr. Black was convicted in 1997. At the conclusion of the hearing, the judge, after noting the statutory presumption in favor of restoration, found that Mr. Black had committed afraud upon the voters of Tennessee when he asserted in qualifying papers that he had never been convicted of a felony and that he exhibited an unwillingness to take r

esp onsibility for his actions. The court found, by a preponderanc e of the2 Ten n. Co de A nn. § 40- 29- 105 (c)(1 ) spea ks of “resto ration of fu ll rights o f citizen ship.” -3- evidence, that the presumption in favor of Mr. Black’s petition ha

d been ov ercome , and that the State had established good cause to deny the petition to restore Mr. Black’s citizenship rights. Thereafter, Mr. Black moved for a pa rtial re storation

of his citi zenship r

ights by gr

anting him

the right to vote. Over the objection of the State, the court granted the motion and restored Mr. Black’s right to vote, but expressly denied him restoration of the right to hold public office.
Mr. Black now

appealsarguing t

hat the c ourt abus ed its disc retion in denying him the ability to ever qualify to run for or

hold any elected public office. He argue s that: (1) the trial court erred because the evide nce prov ided by the

state did not prove, by a preponderance of the evidence, that he was n ot eligible for restoration of citizenship; and (2) the trial court err ed by granting a part

ia l restoration of rights because there is no statutory distinction between the right to vote and the right to hold publ

ic offic e and, the

refore , no statut

ory autho rity for a partial r estorati on of righ

ts. 2
The State agrees with Mr. Black in that there is no statutory authority for a partial restoration of rights, but contend s that the record supports the court’s basic finding that the evidence prepond erated against a restora tion of an y citizen ship rightsat all. II. Civil Disability Statutes
Our Supreme Court has discussedthe nature of the civil disabilities that Tennessee statutes impose upo n personsconvicted of felo nies:
Virtua lly ever y jurisdiction subjects a convicted defendant not only to criminal punishmentbut also sanctions that restrict civil and propriet ary ri ghts. Wal ter M. Grant et al., Special P roject, Th e Collater al C onsequences of a Criminal Conviction , 23 V AND
. L. R EV . 929 (1 970) (hereinafter ‘Special Project’) . Such restrictions, or civildisabilitie s, date

back to ancient Greece and Rome, when a c riminal conviction rendered one ‘infamous,’ and resulted in th e loss of the right to vote, hold office, make speeches or

assemble. The sanctions were viewed as retributive and de terrence me asures imposed against those who committed crimes because they entailed the los s of rights most

cherished by soc iety. Ci vil disab ilities we re also im

posed in e arly English common law in the form of ‘attainder.’ A person convicte d of treason or a felony, i.e., attained, was not only subjecte d to crimin al punishm ent but al so the loss of property, voting, and other civil right s. Walter M. Grant et al., Special P roject, the Collateral Consequences of a Criminal Con victio n , 23 V AND
. L. R EV . 929 at 941-944 (1970).
In this count

ry civil di sabilitie s continue to pla y a significant role in the criminal justice system an d genera lly fall in to one of t

wo cate gories: c ivil death statutes and specific disability statutes.-4- . . . . [S]peci fic disability statutes designate a particular civil disability that occurs upon the conviction and rema

ins in eff ect throughout the

defenda nt’s life unless restored by a specific statutory procedure. Walter M. Grant et al., Specia l Project , The Collateral Consequences of a C ri minal Conviction , 23 V AND
. L. R EV . 929 at 951 (1970). A civil disability pursuant to such a statute may include the loss of the right to vote, hold

office, serve

as a juror, possess firearms, and the denial of prof essional or oc cupatio nal licensing. Special P roject, Th e Collater al Consequ ences of

a Criminal Conviction , 23 V AND
. L. R EV . 929 at 952 (1970).
Like the vast ma

jority of s tates, Ten nessee does not have a civil death statute but rather a series of specific disabi lity statutes. These inc lude the l oss of the right to vote, see Tenn. Code Ann. § 40-20-112; the loss of the right to hold public office, see Tenn. Code Ann. § 40-20-1 14; and the l oss of the right to serve as a fiduciary, see Tenn. Code Ann. § 40-20-11 5. Per sons convicted of certain violent criminal offenses are prohibited from

carrying handguns. Tenn. Code Ann. § 39-17-13 07(b). T he loss of these specific rights of citizenship may be restored pursua nt to a s tat utory proceeding for “re storation of citize nship” se t forth in Tenn. Code Ann. §§ 40-29- 101-105. S ee also21A A M
. J R
. 2 D C RIMINAL L AW , § 1032-1 033 (1981 & Su pp
. 1997).
Cole v. Cam

pbell , 968 S.W.2d 274, 276-77 (Tenn. 1998).
In Cole , the Court h

eld that a convicted felon w as not precluded f rom filing

a petition as a “citizen” under the

Public Rec ords Act b ecause no specif ic statutory disability existed prohibiting such filing. Id . at 277. The Court further noted that, “the limits of punishment [for commission of a crime] are set by the

Legislature and no punishment may beimposed without statutory authority.” Id

. In the case before us, Mr. Black sought restor ation of his citizenship rights which were revoked as a result of his 1997 conviction for forgery, a felony. Revocation of the rights at issue are governed by two statutes: Tenn. Code Ann. §§ 40-20-112 & -114. Tenn. Code Ann. § 40-20-112 provides : Upon conviction for any fe lony, i t shall be the judgment of the court that the defendant be infamous and be immediately disqualified from exercisingthe right of suffrage. No perso n so convicted shall be disqualified to testify in any ac tion, civil or criminal, by reason of having been convicted of any f elony, an d the fact of conviction for any f

elony may

only be used as a reflection upon the person’s credibility as a witness.3 Apparentl y, MCH RA refers t o Mid-Cum berland Human Resources Agency, a non-profit a gency where M r.

Black was ordered t o perform 350 hours of unpaid comm unity ser vice. -5- In addition to

the right t

o votelost pursuant to this statute, the other civil disability relevant herein i s that found in Tenn . Code Ann . § 40-20- 114, which states: Every person c onvicted

of a fel ony or an

infamous c rime and sentenc ed to the penitentiary , either on the state or fede ral leve l, is disqualified from qualifying for, seeking or holding any officeunder the authority of this state unless and until such person’s citizenship rights have been restored by a c ourt of competent jurisdiction. (emphasis added). III. Right to Seek and Hold Public Office
The trial court denied Mr. Black’s petitionto restore his right to seek or hold public office. However, under the specific language of Tenn. Code Ann. § 40- 20-114, a convicted felon i s disqualified from holding public office only if he or she is “sentenced to the penitentiary.” If Mr. Black was not se

ntenced to the pen

itentiar y, he nev er forf

eited the right to se ek and hold p ublic office, and no petition or court order would be requir ed to “restore” a right never taken a way.
It is undisputed that Mr. Black did not serve any part of his sentence in the p enitentiary , instead performing community service. The judgment form included in the record reflects that Mr. Black was sentenced on October 7, 1997, to twoyears at 30% for his felonyconviction. After the phrase “sentenced to” two blocks were chec ked: one for TDOC and o ne for community-based alternative, after which “MCHRA” 3 was handwritten in the blank marked “specify.”
A sentenc e to community-based alternative sentencing is not a sentence to the penitentiary. Community-based alterna tives toincarceration are defined a s “services and prog rams pro vided in local jurisdict

ions for e ligible of fender s in lieu of inc

arcera tion in stat

e penal inst

itutions or local jails and workhous es.” Tenn. Code Ann. § 40-36-102(5) (emphasis added). As a re sult of the enactme nt of the Co mmunity Cor rection s Act in 198 5:
the court is a

uthorize d to sente

nce an e ligible defendant

as defined in

this secti on to any appropriate community-based alternat ive to incarcer ation provided in accordance

with the terms of this chapter, and under such additional terms and conditions as the court ma y prescribe, in lieu of incarceration in a state penal institution or local jail or workhouse.
Tenn. Code Ann. § 40-36-10 6(e)(1 ) (empha sis added ); see also S

tate v. Sa muels , 44 S.W.3d 489, 492-93 (Tenn. 2001). When sentencing a defenda nt to a community-based alternative, the sentencing court ha s the authority to se t the dura tion of the

se ntence within the lawful range and4 In State v. W est , the Tenness ee Supre me Court s tat ed:

Another case cit ed as pos sibl e suppor t for W est’s po sition, Ben tley v. Sta te , 938 S.W.2d 706 ( Tenn. Cr i m. App. 1996) no a ppli cati on for perm. to app. fil ed, was decided on S eptemb er 18, 1996, befo re enactmen t of the most recent version of t

he Tennessee Supreme Court Rule 28, §3(B) [s tati ng that the Ten nesse e Ru les of C rim inal Pr oce dur e do not a pply to po st-con viction pro ceed ings]

. As such, thi s cas e is impli cit ly over rule d to t

he ext ent t

hat i t conf

li cts with Supr eme Court Rul e 28.

We st , 19 S.W.3d at

756 n.9. The court ’s de cis ion i n We stdoes not in any way a ffec t the holdi ng in Bentley that a com mu nity c orre ction s facility is n ot a p ena l institution

.-6- retains the authority to alter the sentence imposed. Id . at 493. The Community Corrections Act was enacted in 1985 to “ establish

a policy within the st

ate to punish

selected, nonviolent felony offenders in front-e

nd c om munity-based alternatives to incarceration , thereby reserving secure confinement

facilities for viol ent felo ny offenders.” Tenn. Code Ann. § 40- 36-103(a

) (empha sis added); see also Samuels , 44 S.W.3d at 492-93; State v. Griffith , 787 S.W.2d 340, 341 (Tenn. 1990). “The goal of the Act is to provide a means of punishment as an alternative to incarceration .” State
v. K endrick , 10 S. W.3d 650, 655 (Ten n. Crim. Ap

p. 1999) ( emphasisadded); see also State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987).
Our courts have specifically held that community-based alternative sentencing facilities, or community

correction facilities, are not “penal institutions.” State v. Kendrick , 10 S.W.3d 6 50 (Tenn. Crim. App. 1999) (holding that a defendant who was found in possession of marijuana at the residential community corrections facility where he was sentenced for a

prior conviction could not be c onvicted of taking controlled substances into a penal institution because a community-b ase d alternative to incarceration as defined in Tenn. Co de Ann. § 4 0-36-102 (5) is not a penal institution); State v. Bentley , 938 S.W.2d 706 (Ten n. Crim. Ap

p. 1996) (

holding tha

t a defe ndant who

left a community

corrections office did not commit the offense of esc ape from a penal institution

because he was serving a community corrections sentence, an alternative to incar ceratio n, and suc

h a faci lity could not be characterized as a penal institution within the meaning of the escape statute), overruled
on other grou

nds by Stat

e v. Wes t , 19 S.W.3d 753 (Tenn. 2000). 4 Accordingly, such a facility is not a penitentiary within the meaning of Tenn. Code Ann. § 40-20-114.
As the Attorney General has opined, “even though a person may have been convicted of a felony or infamous crime, he does not automatically lose the right to seek and hold public office. The person must have also been sentenced to the pen

itentiar y” due to the language of Tenn. Code Ann. § 40-20-114. Op. Atty. Gen. 97-169 at n.5. The record before us reflects that Mr. Black was notsentenc ed to the penitentiary. In its brief, the State does not argue that Mr. Black was sentenced to the penitentiary. Instead, in its statement of facts, the State asserts that after the jury found Mr. Black guilty, “the trial court imposed an alternative sentence of two years . . . .” The State’s brief, in discountin g the character witness ’s testimony about extensive community service work performed by Mr. Black, also state s that the r ecord r eflectsthat he “paid his debt to society by performing 3505 In the Argu ment portion of i ts bri ef, t he State merely says Mr. Black was s entenced to t he Tennessee Department

of Correcti on, but does no t ex pl ai n i t s ea rl i er s t at eme nt , t he j ud gme nt f or m, or the fac t that

Mr. Black served his sentence in the community. We are aware that parti cipati on in comm unity-base d alt ernati ves can als o be used as a condi ti on of proba ti on in conj uncti on with asuspe nded sent ence. Tenn. Code Ann. § 40-36-106( f). Nothing i n the record before us, including the testi mon y at the hearing, and nothing on the judgme nt form indicates that Mr. Black’s sentence was sus pended. The judgment form does not indica te Mr. Black was plac ed on probat ion, as t hat s pace on t

he form was not checked. There was some dis cussi on at t he heari ng of

a subsequent chan ge in the sentence whereb y M r. Black wa s put o n unsupervi sed pr obati on. Whil e tha t orde r coul d perhaps have cl ari fie d the s it uati on, i t was not incl uded in t

he appel lat e recor d.
6 The stat

ute als o spea ks in t erms of c onviction of an “i nfamous cr ime.” All f eloni es committed si nce 1981 are i nfamous cr imes. Tenn. Code Ann. § 40-20-112.

7 So me persons, because of the nature of t he offe nse, are not eli gibl e for restorat ion of suffrage rights, but Mr. Black is not one of

them. “[P]er sons convict ed of murder, rape, treas on, or voter f raud shall never be eli gible t o regist er and vote in this state .” Te nn. C ode An n. § 4 0-2 9-1 05( c)(2 )(B). -7- hours of court-mandated

community service work,” quoting testimony from Mr. Black. 5 Although the judgment form reflects that Mr. Black was sentenced to both TDOC and c ommunity-bas e d alternative sentencing , t hose two d ispositionsare inc onsistent s ince one is an alte

rnative to incarceration. Based upon the entire record before us, w e conclude Mr. Black was sentenced

to a community-based alternative to incarceration and not to the penitentiar y.
As a consequen ce, his ri ght to see k and hold

public of

fice wa s not revo

ked upon h

is conviction, and he was not require d to obta

in a court order restoring it. That portion of the trial court’s judgment denying restoration of the right to seek and hold public office is vac ated.
IV. Resto

ration of Citizensh

ip Rights Specificci vil disabil

ities impos ed as a r

esult of c onviction

may be re stored in

certa i n instances pursuant to a statutory procedure for restoration as set forth in Tenn. Code Ann. §§ 40-29- 101 to 105. Cole , 968 S.W.2d at 277. In relevant part, the statute provides that a person convicted of a felony 6 may petition for restoration of rights of citizenship upon the expiration of the maximum sentence imposed. 7 Tenn. Cod e Ann. § 40 -29-105( c)(2)(B). Mr. Bla ck was s entenced to a maximum of two years on October 7, 1997, and his petition for restoration of citizens hip rights was filed after the expiration of the maximum sentence. There is no question, and the State does not dispute, t hat Mr. Bla

ck was eligible fo

r restor ation of h is full citi zenship r

ights.
The question before us is whethe r Mr. Blac

k met the st

andard f or resto ration of rights. To determine what standards a c ourt must a pply in this situation, identification of the applicable statutes is necessary. Although Tenn. Code Ann. §§ 40-29-101 through 105 generally apply to restoration of citizenship rights, the legislature’s most recent amendment

indicates that only one subsection of Tenn. Code Ann. § 40- 29-105 applies to Mr. Black’s petition. That subsection, (c), provides that “the following procedure shall apply to a person rendered infamous by virtue of being convicted of a felony on or after July 1, 1996.” Tenn. Code Ann. § 40-29-105(c). While subsection (a) of the-8-

statute makes the “provisions and procedures provided for in §§ 40-29- 101--40-29-104” applica ble to those persons covered by subsection (a), subsection (c ) does not include such language. Thus, we can only conc lude that

the legisl ature in

tended th at perso ns convic ted afte r July 1, 1996, would be eligible for res toration o f citize

nship righ

ts only thro

ugh th e proce dures and standar ds set out in Tenn. Code Ann. § 40-29-10 5(c). Th at provis ion decla res a pr esumption

for res toration o f rights, providing:
The petition shall set forth the basis for the petitioner’s eligibility for restoration and shall state the reasons the petitioner believe s that peti

tioner’sfull citiz enshiprights should be restored. The petition shall be accompanied by such c ertified r ecords , statemen ts and other

documents or

information as is necessary to demonstrate to the court that the petitioner is both eligible for andmerits ha ving full r ights of c itizenshi

p restored. The court may require such additional proof as it deems nece ssary to reach a just decision on the petition. There is a presumption that a petition filed pursuant to this subsection shall be granted and that the full citizenship rights of the petitioner shallbe restored. This pre sumption ma y only be overcome upon proof by a preponderance

of the evidence that either the petitioner is not eligible for restoration or there is otherwise good cause to deny the petition.
Tenn. Code Ann. § 40-29-105(c)(3). Good cause is not defined in this section of the Code, a nd the other applicable provision provides little further guidance, stating only: If, upon the face of the petition or after conducting a hearing, the court finds that the petitioner’s full citizenship rights should be restored, it shall so order and send a copy of such or der to the state co ordinato

r of ele ctions. Tenn. Code Ann. § 40-29-105(c)(5).
I nterpretation of the statute applicable after 1996 requires c onsideration of prior law. Fo r those persons convicted of felonies, or infamous crimes, a fter July 1, 1986, bu

t before July 1, 1996, there were separate and distinct procedur es for restoration of the

two separate citizenship rights: the rightto vote

and the r ight to seek and hold public office. See United States v . White , 808 F. Supp. 586 (M.D. Tenn. 1992).
For persons co nvicted of infamous crimes after July 1, 1986, but before July 1, 1996, restoration of the rig

ht to vote was granted by a certificate of restora tion issued by the pardoning, supervising, or incarcerating authority, not by the courts. Tenn. Code Ann. § 40-29-105(b)(3). The authority issuing the certifi cate wa s requir ed to send

a copy to t

he coord inator of election s. Tenn. Code Ann. § 40-29-105(b)(4). The statute specifically provided that a person eligible for restoration “may request, and then s hall be issued a certificate of restoration.” Te nn. Code. Ann. § 40-29-8 Th is auto ma tic adm inistrativ e resto ration of rig hts was the basi s of t he Dist ric t Court ’s hol ding that a diff erent procedure, that s et out i n Tenn. Code Ann . §§ 40-29-101-104, appli ed to r est orat ion of the r ight to hold publi c office , bec ause Ten n. Co de A nn. § 40- 20- 114 pro vide d tha t such right c ould only be re stored by a cou rt.

9 That s tat

ute, in es sence, mirror ed Tenn. Code Ann. § 40-20- 114. -9- 105(b)(3). As the U.S. District Courtstated, u nder the immediate

ly prior sy stem, “if

he is eligible, his right to vote is restored.” White , 808 F. Supp. at 588. 8
In 1996, the legislature amended Tenn. Code Ann. § 40-20-105. See 1996 Tenn . Pub. Acts ch. 898, §§ 1-2. Th

e legisla ture aga in changed the proc ess for r estorati on of citiz enshiprights for a convicted felon. The legislative changes brought the proce ss to the same posture as the pre-1986 statute, mandating

that the D istrict At

torney General

receiv e notice

when a c onvicted

felon fil es a petition for restorationof rights, and giving that office the power to intervene in a ca se to oppose the restoration. However, as § 40-20-105(c), quoted above, states, the District Attorney General may only overcome the presumption for restoration by showing good cause.
The applicable statute requires the petition to state, in addition to facts estab lishing eligibility , “the re asons the

petitione r believ es that pe

titioner’ s full citiz enship ri ghts should be restored” and information demonstrating that the petitioner “merits” having full rights restored. Tenn. Code Ann. § 40-20-105(c). The statutes provide no guidance as to the mea ning of these terms either.
We think, howe ver , some basic principles can be found in court interpretation of the restoration process. In Bryant v. Moore , 198 Tenn. 335, 279 S.W.2d517 (1955), the commissioners of the town of Atwoodrefuse d to meet with a newly elected commissioner, Mr. Bryant, because he ha d been convicted twenty years earlier for forgery. Mr. Bryant had had his rights of citizenship, which had bee

n lost due t

o his conviction, restored by court order. The town argued Mr. Bryant was ineligible to hold the office of town commissioner because of a provision of the Public

Act creating the town prohibited a person convicted of a corrupt practice or crime f rom holding such office. The town also relied upon the statewide statute depriving persons convicted of a felony from holding any office. 9 In ruling that the restoration of rights statute prevailed, the Court stated:
The defendants insist that the Code Section in question, penal in nature, may be inv oked to remove from office a person who has violated no la ws of t his State , because for all of his past infractions of thecriminal laws the defendant has paid the penalty. Our Legislature, many years ago, saw proper t o pass the Re storation

Statute and the Legislature has not se en fit to r epeal it. The purp ose of this law was to wipe outthe transgressions of the of fending p erson and to give him another chance in society. For us to so hold would violate the expressed intention and the true s pirit of the Restoration Statute. Bryant , 198 Tenn. at 338, 279 S.W.2d at 518.10 Th is unclea r lan guage cl ouds t he is sue of whethersubse cti on (a) makes §§ 40-29- 101 through - 104 app licable to persons convicted after July 1, 1986, but before July 1, 19 96, since subsection (b), spec ifically a pplic able to those pers ons, does not incl ude the same la nguage. Because Mr. Blac k was convi cted aft er J uly 1, 199 6, i t i s no t necessary for us to attem pt to discern the legislature’s intent w ith regard to those pe rsons. -10- Similarly, in Cole , the Tennessee Supreme Court indicated that civil disabilities are part

of the punishment for a crime and no such punishment can be assessed beyond that authorized by the legisl ature. Cole , 968 S.W.2d at 277. Because the legislature has: (1) denied eligibility for restoration of the right

to vote only to those persons convicted of specific crimes, Tenn. Code Ann. § 40-29-10 5(c)(2 )(B) ; (2) not l imited available restorations to one per person; and (3) cr eated a presump tion that rights will be restored, Tenn. Code Ann. § 40-29-105(c)(3), we think that the legislature intended that completion or expiration of the sentence satisfied the goals of t he disabi lity related to a particular co nvictio n. In othe r words, the fac t that a pe rson wasconvicted of a cr ime resulting in the loss of specifiedcitizens hip rights doe s not justif y denial o f the re storation of those righ ts after e

xpiration of the se ntence, which is th

e length o f time the

legislatu re has determine d fulfills the purposes of disability. Similarly, the facts about that crime or conviction do not provide a basis for denial of restoration.
To the contrary, the petitioner’s conduct after his conv iction, r ather than before it, is the appropr iatefocus of a proceeding on a petition for restora tion of citizenship rights. See Spe c ial Project, the Collateral Consequences of a CriminalConviction , 23 V AND
. L. R EV . 929, 1143 (1970) (stating that

“Relief from civil disabilities has traditionally been granted once the offe nder has been released from correctional supervision and has demonstrated that he c an live a life that is consistent withthe demands of so ciety.”) In the statutory provisions applicable to persons convicted befor e Jul y 1, 1996, the legislature has specifically incorporated that conc ept into the standard fo r restoration. Tenn. Cod

e Ann. § 40 -29-105( a) incor porates§ § 40- 29-101 through - 104 into the provisions and procedures applicable to restoration of r ights for persons convicted “prior to July 1, 1986, butbefore July 1, 1996.” 10 Tenn. Code Ann. § 4-29-102 requires that a petition for restoration be sustained By satisfactory proo f that eve r s ince the judgement of disqualification , the petition er has sustained the character of a pe rson of honesty, respectability and veracity, and is g enerally estee med as suc

h by the pe

titioner’ s neighbor s.
Tenn. Code Ann. § 40-29-102 (emphasis added); see also I n re Curtis , 6 Tenn. C iv. App. ( 6 Higgins) 12 (1915).
While both Mr. Black and the State rely on this provision, it does not appear to us that it is directly applica ble to restoration proceedings initiated by persons convicted after July 1, 1996, because of the language of Tenn. Code Ann. § 40-29-105(c) . Nonetheless, we find no basis in the 1996 amendment to believe that the legislature intended to depart from the basic premise that preconviction or pre-disqualification conduct does not constitute “good cause” to deny restoration of citizens hip rights.-11-

The 1996 amendment mad e specif ic and significant changes in the burden of proof. As noted above, there no w exists a

presumpt ion that a petition for restoration will be granted and full right s restored. “This presumption may only be overcome upon proof by a preponderance of the evidence that . . . there is otherw ise good cau se to deny the petition.” Tenn. Code Ann. § 40-29-105(c). The statute shifts the burden o f proof t

o the State

to show good cause. With these precepts in mind, we examine the proof present ed here in as well as the tri al court ’s finding s.
Mr. Black offered

the testimony of Mr. Brinkley, Beth Robertson, and himself. Mr. Brinkley testified that he was a former school teacher and president of the local branch of the NAACP who had known Mr. Black for twenty (20) years. He testified that Mr. Black had been “a real asset to our community

there in Ga llatin,” had served on different committees, and that he wa s a person that others had bee

n able to h

eavil y depe nd upon. When questioned, however, Mr. Brinkley did not know the nature or character of the offenses for which Mr. Black had been c onvicted.
Mr. Black hims elf test

i fied during the hearing on the petition. He testified that there was nothing in his character that should preclude him

from having his full

rights of citizenship restored. When questioned regarding his felony conviction, Mr. Black was reluctant to admit culpability and disputed some facts surrounding his execution of t he bon d in questi on. However, he r eadily acknowledged

that the jury believed that he had known the defenda nt in quest

ion was us ing an ali as. He also agreed that if the records showed he ha d bonded the man out under a false name, he did not disagree. The trial court discounted Mr. Black’s testimony from the bench, stating: “Mr. Black, you didn’tcome forward and really tell me that you admitted anything. Basically you don’t take responsibility for your own actions.”
The State offered the testimony of Richard Stout with TBI. He was involved in the investigation of the underlying forger y and test ified to f acts sur rounding t

hose eve nts at the trial, but conceded that he did not have any d irect k nowledge of Mr. Black’s conduct after the trial a nd conviction.
After he aring the

testimony, the trial

court ma de the fo llowing findings of f act:
1. David Black, a citizen of Gallatin, Tennessee, wa s convicted of two fel onies, namely, selling marijuana on July 1, 1983.
2. In Dece

mber 1993 , David Bla

ck was elected City Co uncilman for the city of Gallatin after having received a majority of the votes in his counc ilman district. He qualified to run for this office by asserting that he had never been convicted of any felony.
3. After his election but

before he was to assume the office of Counci lman, Dav

id Black had his full rights of

citizens hip resto

red by the

Circuit C ourt of Sum

n er County, Tennessee, on December 1 0, 19 93. He was subsequently disqualified, by-12-

order of th e Cha ncery Court of Sumner County, from assuming the position of councilman to which he had been elected.
4. After having his full rights of citizenship restored David Black again ran for the office of Councilman for the City of Gallatin, was elected and assumed that office.
5. In addition to being a city councilman David Black w as also a p rofessional bondsman in the Sumner County Courts.
6. While a city co uncilman and prof essional bondsman, David

Black was convicted and sentenced for the felony of forge ry on October 7, 1997.
7. Da vi d Black now seeks, for the second time, the restoration of his full rights of citizenship.
8. It was a fraud upon the voters of the State of Tennessee for David Black to run for office in 1993 and say, under oath, that he had never been convicted of a felony whe n in fact he had been convicted of two felonies and had not had his civil rights restored.
9. David Black has been and still is, a cti ve in the community, his church and the NAACP. His witnes s, Charle s Brinkley , testifie d for him as to his good character, but Mr . Brinkley did not know what, if anything, David Black had been convict e d of or why Mr. Black was no longer a city councilman or bondsman.
10. The court finds that David Black has not proved that he has sustained the character of a personof honest

y, respectability and veracity generally estee med as such by his neighbors. On the contrary, the Court finds that Mr. Black basically does not take responsibility for his own actions.
As this excerpt makes clear, the trial court relied in large part on conduct by Mr. Black prior to his loss of citizenship rights in 1997. In fact, the court relied on conduct which pre-dated the earlier restoration of rights, i.e. his failure to disclose his prior convictions when he ran for coun cil the first time. The only findings relating to his post-conviction conduct were that he is active in the community, his church, and the NAACP and that he does not ta

ke respo nsibility f

or his own actio ns. We interpret the

la tter as r

elating to Mr. Black ’s unwillingness to a dmit to some

of the fa

cts underlying his conviction for forgery. Although the trial court acknowledged the statutory presumption for restoration, the court’s conclusions reflect that it placed the burden of proof on Mr. Blac k and found hi s proof to be inadequate. The trial court’s Final Order outlines the following conclusions of law, based upon the factua l finding that Mr. Black did not prove that he had sustained the character of a person of “honesty, respectability, and veracity” by stating:-13-

1. There is a presumption that a petitionfiled pur suant toT.C.A. 40-29-105 shall be grantedand that the full citizenship rights of the P etitio ner shall be resto red. This presumption may only

be overcome upon proof by a preponderance of the evidence that either the Petitioner is not eligible for restoration or there is other wise goo d cause to deny the petition. 2. The Petitioner is eligible to have his full civil rights restored in this cause.
3. There is good cause, notwithsta nding his eligibility to

have his f

ull civil r ights restored in this cause.
4. The presumption that the Petition should b e granted ha s been overcome by the proof, and the pr

eponder ance of the evide

nce show s that the Pe tition sh ould be denied. The felony conviction at issue was incurred while David B la ck was an elected City Councilman and a professional bondsman- both positions of trust, which trust he betrayed.
5. This is the

second time David B lack hasso ught t o have hisfull civil rights restored, and unde

r the fa cts and c ircumsta

nces of t his case it would be unfai r to the ci tizen s and voter s of this sta te to gra nt to Mr. Bla

ck a sec ond resto

ration of full citizenship rights. . . .
In accordance

with these findings and conclusions, the trial court denied the petition, yet granteda motion by Mr. Black for a partial restoration of citizenship rights. The cour t restored Mr. Black’s right to vote, but expressly denied him the right to run for public office. This decision was basedupon the tr

ial cour t’s feel ing that a llowing Mr . Black to e

xercise “his own personal right to vote” would not b e contra ry to publi c policy or harmful to the public good. However, the court remained adamantly steadfast that Mr. Black should not regain the right to hold public office

. The District Attorney Generalhad argued that the court did not have authority under the new statute to restore one type of right but deny restoration of another. With this argument in mind, the trial court sta

ted, “if it is permis sible to allow Mr. Bl ack t o vote, I w ould be ple ased to gr ant his petition just to allow him to vote in elections. But it expressly would be contrary to my findings or order for him to run for

public office. . . .” Apparently the court intended to deny re storation of the rightto vote if p artial r

estorati on is not authorized. However, the final order states, “David Black’s right to cast his personal vote in public election is hereby RESTORED.” Consequently, th e judgment under review was a grant of restora tion of the right to vote.
We conclude

that the st

atutory p resumptio n in favor of

restoration was not overcome by a showing, by a preponderance of the evidenc e, of good cause to deny the petition for restoration of citizens hip rights. The State provided no proof regarding Mr. Black’s conduct s ince his c itizenshi p rights were remove d in conn ection wi th his 1997 c onviction . In its only refer ence to p ostdisqualification conduct, the State argued t hat Mr. Bla

ck contin ues to den y his culpa

bility or refuses11 The trial court held Mr. Black ha d not met hi s burde n of provi ng that he had “sustained the character of a

person of hones ty, res pectabil it y and veraci ty, and is general ly es teemed as such by hi s nei ghbors” pursuant to Tenn. Code Ann. § 40-29- 102. Tenn. Code Ann. § 40-29- 105(c)( 3) merel y requi res the petition er to sh ow that he or sh e m erits restorat ion of rights. Proof re gardin g con duct after co nviction is relev ant und er both re quirem ents, but t he burden of establ ishi ng reputati on in the community is not e xplici tly i ncorporated i nto the newer st atute. -14- to take responsibility for the acts which resulted in his conviction. This argument is based on Mr. Bla ck’s testimony at the hearing in this proceeding. Having fully reviewed that testimony , w e cannot conclude that it establishes the conclusion argued by the State by a preponde ra nc e of the evidence. Even if it did, howe v er, we are unable to find a require ment that a convicted person confessto the cr

ime for which he or she

was convicted asa prerequisite to r egaining citizens hip rights.
While

we hold that the 1996 amendment to Tenn. Code Ann. § 40-29-105 shifts the burden of proof, we d o n ot hold tha t a petitio ner has no burden to establi sh that he

or she “m

erits” restoration. 11 In the case before us, there is simply no evidence to contradict the testimony of Mr. Black or his witness as to his conduct since his conviction.
V. Conclusion
We vacate the trial court’s denial of restora tion of Mr. Black’s r

ight to see

k and hold

public office because he did not lose that right as a consequence of his conviction since he was not sentenced to the penitentiary. We affirm the tria l court’s restorationof the right to vote. Because t he presu mption in favor of restoration was not overcome by proof of good ca use to deny it, Mr. Black was entit led to hav e his righ

t to vote restored. Costs of this appeal are taxed to the Appellee, State of Tennessee.

___________________________________ PATRICIA J. COTTRELL, JUDGE