# FILED July 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE ) FOR PUBLICATION ) Appellee ) FILED: JULY 6, 1998 ) V. ) SHELBY COUNTY ) ) HON. JOSEPH B. DAILEY, HOWARD E. KING ) JUDGE ) Appellant ) NO. 02-S-01-9703-CR-00021

For Appellant: For Appellee: A. C. WHARTON, JR. JOHN KNOX WALKUP Public Defender Attorney General and Reporter WALKER GWINN MICHAEL E. MOORE Assistant Public Defender Solicitor General Memphis, Tennessee LINDA A. ROSS Associate Solicitor General Nashville, Tennessee WILLIAM L. GIBBONS District Attorney General DAVID C. HENRY Assistant District Attorney Memphis, Tennessee

OPINION

AFFIRMED BIRCH, J.1 OnMay 1, 1998, Tennessee’s General As se mbly passed Public

Chapter No. 1041, an amendment to § 40-35-201 which deletes subsection (b) in its entirety and substitutes the following:

Inall contested criminal cases, except for capital crimes which are governed by the procedures contained in TCA §§ 39-13-204 and 39-13-205, and as necessary to comply with Article VI, Section 14 of the Constitution of the State of Tenness e e and TCA § 40-35-301, the jud ge sh all not instruct the jury, nor shall the attorneys be permitted to comment at anytime to the jury, on possible penalt i es for the offense charged nor all lesser included offenses. This amendment will apply to all trials occurring after the act’s effective date.

2 One commits aggra vated burglary who unlawfully enters a habitationwithout c onsent of the owner with intent to commit theft. Tenn. Code Ann. §§ 39-14-402 and 403 (1991) . Ag gravated burglary is a Class C felony. Id. 2 We granted permission to appeal under Tenn. R. App. P. 11 to Howard E. King, the appellant, in order to address the constitutiona li tyof Tenn. Code Ann. § 40-35-201(b)(2) (Supp. 1994), 1 which requires trial cou rts to instruct juries regarding parole and rel ease e ligibility when a jury instruction on the sentencing range is requested by either party. Because we find that the statute does not violate the separation of powers doctrine
or deprive the appellant of his due process right to a fair trial,
we conclude that the statute, as applied under the circumstances of this case, is constitutional.

I

The appellant was indicted on a single count of aggravated burglary. 2 The State filed a notice of intent to se ek enhanced punishment pursuant to Tenn. Code Ann. § 40-35-202 (1990),3 Tennessee Code Annotated § 40-35-201(b) provides: (b)(1) In all c ontested criminal cases, except for capital crimes which are governed bythe procedures contained in §§ 39-13-204 and 39-13-205, upon the motion of either par ty, filed with the court prior to th e selection of the jury, the court shall charge the possible penalties for the offense charged and all lesser included offenses. (2)(A)(i) Whe n a charge as to possible penalties has been requested pursuant to subdivision(b)(1), the judge shall also include in the instructions for the jur yto weighand consider the meaning of a sen tenc e of imprisonment for the offense charged and anylesser included offenses. Such instructionshall include an approximate calculationof the minimum numb er of years a personsentenced to imprisonment for the offense charged and lesser included offenses must serve before reaching such person's earliest release eligibility date. Such calculation shall include such factors as the release eligibility percentage established by § 40-35-501, maximum and minimum sentence reductioncredits authorized by § 41-21-236 and the governor's power to reduce prison overcrowding pursuant to title 41, chapter 1, part 5, if applicable. (i i) S uch instructions to the jury shall also include a statement that whether a defendant is actually released from incarceration on the date when such defendant is first eligible for release is a 3 onthe grounds that the appellant is a persistent offender. Under Tenn. Code Ann. § 40-35-107(c)(1990), a persistent offender faces
a Range III sentence, which prescribes a more lengthy sentence than does Range I, the shorter sentencing range for standard offenders.

Prior to trial, the appellant filed a motion requesting the trial court to instruct the jury on the range of punishment for aggravated burglary and all lesser included offenses, pursuant to Tenn. Code Ann. § 40-35-201(b)(1). 3 At the same time, however, hediscretionarydecision made by the board of paroles based upon manyfactors, and that such board has the authority to require the defendant to serve the entire sentence imposed by the court. (B) On an annual basis, the departme nt of correctionshall provide each judge exercising criminal trial court jurisdiction with the appro ximate calculation require d i n subdivision(2)(a). Such calculation shall be broken down to show the effect of each factor used in making s uch ca lculation. If the calculation provided by the department to the judges changes because of a change in the law or correctional policy, court intervention, the governor's prison overcrowding policy or anyother such circumstance, the department shall send a revised calculation to the judges as such changes occur.

4 requested the trial court to refrain from instructing the jury on parole eligibility, as required by Tenn. Code Ann. § 40-35- 201(b)(2) whenever an instruction is given under (b)(1). The trial court granted the motion to instruct as to range of punishment, but denied the motion to exclude an instruction on parole eligibility.

The case was thereafter tried, and at the conclusion of all the proof, the jury was instructed as follows:
The jury will not attempt to fixany punishment or sentence for these offenses. However, for your informationonly, you are informed that the ranges of punishment as to the offenses are as follows: AGGRAVATED BURGLARY-- imprisonment for not less thanthree (3) nor more than fifteen (15) years. You are further informed that the minimum number of years a person4 Inhis application fo r pe rmission to appeal, the appellant

also made a passing assertion that Tenn. Code Ann. § 40-35- 201(b)(2) violated his right to an impart ial jury under Tenn. Const. Art. I, § 9. However, the jury instruction given under (b)(2) did not contain anything that would cause the jury to b e biased or prejudiced against the appellant. This assertion is 5 sentenced to imprisonment for these offenses must serve before reaching the earliest release eligibility date (RED) is:

AGGRAVATED BURGLARY 3 YEARS RED% 30% RED% APPLIED 0.90 yrs W/MAX CREDITS 0.59 yrs SAFETY VALVE 0.54 yrs SAFETY VALVE 0.35 yrs & MAX CREDITS Whether a defendant is actually released from incarceration on the date when first eligible for release is a discretionary decision made by the Board of Paroles and is based on many factors. The Board of Paroles has the authority to require a defendant to serve the entire sentence imposed by the Court.
The jury found the appellant guilty of aggravated burglary. After
a sentencing hearing, the trial court sentenced him as a Range III persistent offender t o th irteen years in the Department of Correction. The Court of Criminal Appeals affirmed the judgment of the trial court.

II

The appellant c onte nds that Tenn. Code Ann. § 40-35- 201(b)(2) violates two constitutional pri ncip les: separation of powers and due process. 4 As questions of l aw, we review thesewithout merit. 6

constitutional issues de novo with no presumption of correctness. See State v. Winningham , 958 S.W.2d 740, 742-43 (Tenn. 1997); State v. Lewis , 958 S.W.2d 736, 738 (Tenn. 1997).

A
We first address the separation of powers issue. Article II, § 1 of the Tennessee Constitution provides:

The powers of the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial.
Article II, § 2 provides:

No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted.
The separation of powers doctrine arises from the precept that “[i]t is essential to the maintenance of republican government that the action of the legislative, judicial, and executive departments should be kept separate and distinct.” Richardson v. Young , 122 Tenn. 471, 492, 125 S.W. 664, 668 (1910). The Court of Appeals has summarized the doctrine as follows:

In general, the “legislative power” is the authority to make, order, and repeal law; the “executive power” is the authority to administer and7 enforce the law; and the “judicial power” is the authority to interpret and apply law. The Tennessee constitutional provision prevents an encroachment by any of the departments upon the powers, functions and prerogatives of the others. The branches of government, however, are guided by the doctrine of checks and balances; the doctrine of separation of powers is not absolute.
State v. Brackett , 869 S.W.2d 936, 939 (Tenn. Crim. App. 1993) (citations omitted). Thus, while the three branches of government are independent and co-equal, they are to a degree interdependent
as well, with the functions of one branch often overlapping that of another. Underwood v. State , 529 S.W.2d 45, 47 (Tenn. 1975). “[B]ecause the defining powers of each d epartment are not always readily identified, recognizing an encroachment by one department uponanother is sometimes difficul t.” Summers v. Thompson , 764 S.W.2d 182, 189 (Tenn.)(Drowota, J., concurring) cert. dismissed , 488 U.S. 977, 109 S. Ct. 523, 102 L. Ed.2d. 556 (1988).

According to the appellant, the Tennessee Legislature violated the separation of powers doctrine by enacting Tenn. Code Ann. § 40-35-201(b)(2), which, he contends, improperly encroaches upon the judicial function of determining the law appropriate for jury consideration in each case. Essentially, by enacting Ten n . Code Ann. § 40-35-201(b)(1) & (2) the legislature ha s d eemed sentence and parole information relevant t o th e determination of guilt or innocence. Yet, a trial judge is obligated, as part of the judicial function, to afford a fa ir trial by determining relevancyon a question-by-question basis. Moreover, relevance is8

controlled b y the Tennessee Rules of Evidence. A legislative predetermination of relevancy, then, suggests a collision between the judicial and legislative functions.

Howeve r , we have previously recognized that the first subsectionof the same statute, which provides for a range of punishment instruction whenrequested by either party, is a proper exercise of the legislative function. Tenn. Code Ann. § 40-35- 201(b)(1); State v. Cook , 816 S.W.2d 322, 326-27 (Tenn. 1991). The additionof information on the shortest length of time a defendant mayserve is merely a refinement on that instruction. Admittedly, the statute constitutes an overlapping of the legislative power withthat of the judiciary, and it may indeed be close to an improper inf ringem ent. Yet, having already acknowledged the authorityof the le gislat ure to provide a range of punishment instruction, we must also acknowledg e that an explanation of the reality of early release and parole is no further an encroachment into the judicial function. The jury must still decide the issue of guilt or innocence, and the trial c ourt must still decide the ultimate sentence to be imposed. Therefore, we conclude that Tenn. Code Ann. § 40-35-201(b)(2) does not violate the Separation of Powers Clauses of the Tennessee Constitution.

B

Next, we consider the appellant’s as serti on that his right to due process was violated. Article I, § 8 of the Tennessee Constitution provides:9 That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.
The Four teenth Amendment, § 1, to the United States Constitution provides: [N]or shall any state deprive any

personof life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The appellant contends that Tenn. Code Ann. § 40-35-201(b)(2) deprived him of the due process right to a fair trial in three ways: (1) the statute is impermissibly vague, (2) the statute requires a misleading jury instruction, and (3) the statute requires a jury instruction onmatters irrelevant to a defendant’s guilt or innocence.

Turning to the vagueness question, the appellant relies
on Farris v. S tate , 535 S.W.2d 608 (Tenn. 1976), to support his contentionthat this provi sion is unconstitutionally vague and i mpossible to apply. In Farris , two members of the Court found that a statute requiring jury instruction on parole eligibility, the powers and duties of the Board of Pardo ns a nd Paroles, the effect of a prisoner's good behavior, and the allowance of good5 The majority of the Court struck down the provision in Farris

because the act was broader than its caption and thus unconstitutional under Tenn. Const. Art. II, § 17. 10 time credits was unconstitutionally vague. 5 Id. at 612 -13. That statute provided:
It shall be the further duty of

the trial judge charging jurors in cases of criminal prosecutions for felonyoffenses to charge the said juryas to the provisions of this section and as to the provisions of §§ 40-3612, 40-3613, 41-332 and 41-334, wherever applicable. Tenn. Code Ann. § 40-2707 (1975).

The difference between the above statute and Tenn. Code Ann. § 40-35-201(b)(2) is readily apparent. An instruction given pursuant to § 40-2707 provided no reasonable guidance as to the ramifications of th e parole system in any particular case, other thanto suggest that at some future date the defendant mayreceive the benefits of parole. A jury was simply supplied with a mass of general information, in the form of a statutorily-derived narrative concerning the operationand possible effects of the parole system, and was left to decipher that information and compute the length of time a defendant would serve as best it could. In contrast, Tenn. Code Ann. § 40-35-201(b)(2) does not leave a jury to speculate about release eligibi litydates, good time credits, and safety valve release provisions. Rather, it requires the experts at the Department of Correction to compute the figures so that the jury is supplied with concrete, specific figures reflecting applicationof the various factors r elevan t to release eligibility. Jurors are11

not left on their own to d eciph er the intricacies of parole law. We conclude that Tenn. Code Ann. § 40-35-201(b)(2) provides explicit, objective, and unambiguous guidance sufficient to overcome any allegation of vagueness.

The appellant’s second due process argument is that the juryinstruction givenunder Tenn. Code Ann. § 40-35-201(b)(2) was impermissiblyinaccurate and misleading, thus depriv ing him of a fair trial. The instruction at issue informed the jury as to the shortest possible sentence for a ggra vated burglary under Range I (three years), and the longest possible sentence under Range III (fifteenyears). The jur y was additionally instructed that the minimumportion of the sentence that a defendant must serve before becoming eli gib le for parole is thirty percent, which is the applicable percentage under a Range I sentence. Tenn. Code Ann. § 40-35-112. Once the sentence reduction credits and the safety valve provisions were applied to the shortest sentence under Range I, the shortest possible period of incarceration was approximately four months.

The appellant contends that the above i nformation was misleading because the State had already filed a notice of intent to seek enhanced punishment under Range III. Hence, the actual minimumhe was fa cing was ten years, not three, and the release eligibilityhe was subject to was forty-fi ve per cent, not thirty p ercent. Tenn. Code Ann. §§ 40-35-112(c) and -501(e) ( 1990) . Further, he argues that the safety valve provision should not have12

been utilized in the jury instruction, because its application to his sentence is uncertain.

He compa res his situation to State v. Cook , 816 S.W.2d 322, a case in which the defendant was convicted of multiple counts of aggravated rape and aggravated sexual battery of a child under the age of thirteen. Because of the age of the child, the offense
was statutorily deemed an “aggravated offense,” requiring sentencing a s a Range II offender. However, the State did not timelyfile a notice of intent t o see k enhanced punishment. The trial court erroneously assumed that the State’s failu re to file such notice foreclosed the possibility of a Range II sentence and instructed the jury only as to punishment under Range I. Id. at 323. This Court held that regardless whether the State had filed the required notice of intent, the law required that the defendant be sentenced as a Range II offender. Because the jury needed to knowthe tru e rang e of punishment before deciding guilt or innocence, the case was remanded for resentencing. Id. at 326-27.

We find Cook to be inapposite. The jury in Cook was not instructed as to the proper range of punishment. The jury in this case was properly instructed that the overall range of punishment for aggravated burglary, from Range I to Range III, was three t o fifteenyears. Furthermore, the instruction regarding “the minimum number of years a person s ent enced to imprisonment for these offenses must serve before reaching the earliest release eligibilitydate” was accurate, because the actual decision whether to permit enhancement does not occur until after conviction at the13

sentencing hearing. The minimum the appellant was facing at the time the jury received this instruction was three years at thirty percent, despite the fact that the State had filed a notice of intent to seek enhanced punishment. This is in marked contrast to the Cook case, where the defendant was statutorily ineligible for any sentence less than Range II if convicted.

We find the instant case more factually similar to State
v. Smith , 926 S.W.2d 267 (Tenn. Crim. App. 1995). The defendant in Smithwas charged with forgery, a Class E felony; thus, fromRange I to Range III the possible sentences were from one to six years. Tenn. Code Ann. § 40-35-112. The State filed a notice of intent to seek enhancement to Range II; if they were successful, Smith would be facing two to four years. The trial court instructed the jury that the defendant was facing one to four years. On appeal, the Court of Criminal Appeals noted:

Whether the defendant qualified as Range I or Range II depended upon the proof offered at any subsequent sentencing hearing. Thus, the jury was aware of the possible range of punishment that could have resulted fromtheir verdict. In our view, the instructions were accurate.
Id. at 271 (citation omitted). We likewise find the instructions to be accurate in this case. While it might be more desirable to have the jury informed as to the minimum sentences and their respective release eligibility percentages in eachrange for which the defendant qualifies, that is not what the statute requires. We
are reluctant to add another layer that would only complicate this issue for the jury.14 The appellant’s final argument is that parole eligibility, sentence reduction credits, and rel ated matters are entirelyirrelevant to the jury's ultimate function: the determinationof guilt or innocence. Therefore, he argues, instructing juries on such matters violates his due process right to a fair trial because the jury is allowed to base its decision on facts other than those relating to guilt or innocence. However, we disagree with the characterization of the sentencing and parole information as entirely irrelevant. While it may not be relevant in the strictest sense, it does have a measure of relevance. And as we previously explained, the legislature has determined for us the relevancy of sentencing and parole information.

Moreover, providing the jury with such information does not violate the appellant’s constitutional rights. In Shannon v. United States , 512 U.S. 573, 114 S. Ct. 2419, 129 L. Ed.2d 459 ( 1994), the United States Supreme Court held that federal court s
are not requiredto in struct non-sentencing juries on the actual consequence of a “not guilty by reason of insanity” verdict; the Court did not hold that it would be unconstitutional to do so. Rather, the decision was primarily based on the fact that the federal statute governing the insanity d efen se did not authorize suchan instruction. Id. at 580-87, 114 S. Ct. at 2425-28, 129 L. Ed. 2d at 467-71. In this case, however, the statute n ot onl y explicitlyauthorizes the jury instruction, but indeed requires it.15 The United States Supreme Court considered the constitutional ramifications of a similar j ur y instruction in California v. Ramos , 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed.2d 1171 (1983). In that case, the Court upheld California's practice of informing juries about the Governor’s power to commute a life sentence without the possibility of parole to a life sentence with the possibility of parole, even though it was the jury who imposed the sentence. The defendant asserted that the instruction was unconstitutional becau se it was irrelevant to the sentencing decisionand too speculative an element for the jury’s consideration. T he Cou rt disagreed and found that the jury’s considerationof possible commutation was not prohibited by the United States Constitution. The Court concluded that “the wisdom of the decision to permit juror consideration of possible commutationis best left to the States.” Id. at 1014, 103 S. Ct at 3460, 77 L. Ed.2d at 1189.

The people of this State, through the members of the General Assembly, have indicated a desir e for truth in the sentencing process. Tennessee Code Annotated § 40-35-201(b)(2) is
a r eflection of that desire. As a matter of policy, the legislature has decided that the sentencing information is relevant because jurors are better off having concrete information on these iss ues rather than being left to speculate on their ow n. Th e rationale for permitting an instruction on the range of punishment,
even though the jury does not impose the sentence, is t hat i n reality, “jurors will consider pun ishmen t anyway and without direction may speculate to the possible detriment of a defendant.16

If nothing else, the instruction impresses upon the jurors the consequences of a guilty verdict.” 11 Davi d Rayb in, Criminal Practice and Procedure § 30.73 (1985).

The jurors in this case were properly instructed that the State must prove each element of the charged offense beyond a reasonable doubt. Significantly, they were additionally instructed that they were not to attempt to fix punishment for the offense and that the s ente ncing information was “for your information only.” Whenthe trial court explains, as it did here, that the sentencing, parole, and early release information is not to be considered in the determination of guilt or innocence, then certainly no due process violation has occurred. A jury is presumed to have followed the law as instructed. State v. Harris , 839 S.W.2d 54, 72 (Tenn. 1992). We have no reason to suspect that the jury failed to heed the instructions given by basing its verdict on irrele van t considerations. While some may prefer a “pure” system where juries are wholly unaffected by considerations other than those strictly relevant to guilt or innocence, the reality is that jurors bring their experience and knowledge into the courtroom with them. We do not quarrel with those who feel it is better for them to be accurately informed rather than left to speculate.

Finally, because Tennessee’s trial courts no longer operate under a system of jury s ent encing, an instruction under Tenn. Code Ann. § 40-35-201(b) does not permit a jury to impose a sentence based on how much time they speculate that a defendant will actuallyserve. As this Court stated in Farris , “[a] greater17

defect in the law stems from the fact that jurors tend to attempt to compensate for future clemency by imposing harsher sentences.” 535 S.W.2d at 614; see also State v. Johnson , 698 S.W.2d 631, 632 (Tenn. 1985), cert. denied , 476 U.S. 1130, 106 S. Ct. 1998, 90 L. Ed.2d 679 (1986). Now that the judg e imposes the sentence, the risk of such compensation no longer exists. In sum, und er the circumstances presented we find that the jury instruction given under Tenn. Code Ann. § 40-35-201(b)(2) did not deprive the appellant of his due process right to a fair trial.

III
We conclude that Tenn. Code Ann. § 40-35-201(b)(2) does not violate the Separation of Powers Clauses of t he Ten nessee Constitution. Neither is the statute impermissibly vague, nor does it require a misleading jury instruction. Additionally, we ar e satisfied that the jury based its verdict upon the law and evidence, in accordance with the instructions of the trial court. Thus, we find that neither the Due Process Clause of the United States nor the Tennessee Constitution was violated by the jury instructiongiven pursuant to the statute. The conviction s a nd sentence imposed by the trial court are affirmed.

______________________________ ADOLPHO A. BIRCH, JR., Justice CONCUR: Anderson, CJ. Drowota, Holder, JJ. Reid, S.J.