IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 18, 2010

STATE OF TENNESSEE v. CALVIN DEMETRIUS SHAW

Direct Appeal from the Circuit Court for Maury County

No. 18013 Stella Hargrove, Judge

No. M2009-01568-CCA-R3-CD - Filed March 14, 2011

A Maury County Circuit Court jury convicted the appellant, Calvin Demetrius Shaw, of

simple possession of cocaine, a Class A misdemeanor. During a sentencing hearing, the trial

court determined that the appellant had two prior convictions for simple possession and

sentenced him to twenty months in confinement for simple possession as a Class E felony

pursuant to Tennessee Code Annotated section 39-17-418(e). On appeal, the appellant

contends that the trial court erred by sentencing him for a Class E felony when the jury found

him guilty of a misdemeanor and that Tennessee Code Annotated section 39-17-418(e) is

unconstitutional because it allows for enhanced punishment without prior notice. The State

concedes that the trial court improperly sentenced the appellant for a Class E felony. We

agree and conclude that the case should be remanded to the trial court for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed,

and the Case is Remanded.

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which DAVID H. WELLES and

ROBERT W. WEDEMEYER, JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Calvin Demetrius Shaw.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant

Attorney General; T. Michel Bottoms, District Attorney General; and Kyle Dodd, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
The appellant does not contest the sufficiency of the evidence. Taken in the light most

favorable to the State, the evidence shows that on the morning of April 2, 2008, the appellant

was staying in room thirty-four at the Polk Motel in Columbia with his two children, ages

eight and six. A housekeeper testified that she heard “hollering” by a man in room thirtyfour and a gunshot. A second housekeeper went to the motel office and reported the incident

to a police detective, who happened to be at the motel for an unrelated case. The detective

went to the appellant’s room and heard the appellant, who sounded excited and upset, inside.

The detective called for backup, and two other officers arrived. The officers ordered the

appellant to open the door. When the appellant opened the door, the officers saw he was

naked and forced their way into his room. The police called emergency medical services to

the scene to examine the appellant, and the appellant told a paramedic he had snorted one

gram of cocaine. The paramedic testified that the appellant was anxious and believed

someone was trying to kill him, behavior consistent with someone who had used cocaine.

The appellant refused medical treatment, and the police arrested him. During a search of the

appellant’s motel room, an officer found two bags of powder cocaine. One bag contained

2.3 grams of cocaine, and the second bag contained .3 grams. The appellant testified that on

the morning of April 2, 2008, he had been awake and snorting cocaine for two days and was

“high out of [his] mind.” He thought someone was trying to get into his motel room, began

yelling, and shot through the door. Although the appellant had been charged with possessing

.5 grams or more of cocaine with intent to sell, a Class B felony, the jury convicted him of

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simple possession, a Class A misdemeanor.

At the appellant’ssentencing hearing, Emily Thigpen from the Board of Probation and

Parole testified that she prepared the appellant’s presentence report. According to the report,

the appellant had two prior convictions for simple possession. In a statement for the report,

the then thirty-year-old appellant told Thigpen that he began using cocaine when he was

twenty-four years old and that he was still using it on April 2, 2008. The appellant told her

that he would use the drug for several days, stop using it for one or two weeks, and then use

it again for several days, often consuming one or two grams per day. Thigpen stated that the

appellant had been convicted of twenty-nine prior misdemeanor offenses, that he had been

sentenced to probation several times, and that he had violated probation several times.

The State introduced the appellant’s presentence report into evidence. In the report,

the appellant claimed he graduated from high school and attended ITT Tech in Nashville.

The appellant reported that his physical and mental health were “excellent” but that he was

taking Zoloft for depression. The appellant stated in the report that he attended a drug

program from 2005 to 2006 but that he quit attending and did not complete the program.

According to the report, the appellant had been employed for only three brief periods of time

The judgment of conviction form incorrectly states that the indicted offense is a Class C felony.

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and had never served in the military. The report shows the appellant has been committing

crimes since he was nineteen years old and has numerous prior misdemeanor convictions,

including convictionsfor drug possession, driving with a suspended license, assault, criminal

impersonation, evading arrest, criminal trespass, reckless endangerment, and public

intoxication.

In a statement to the court on his own behalf, the appellant said he had a drug problem

and asked the court to “consider giving me some help so I may put my life back in order.”

The appellant told the court that he had two children to raise and that some form of treatment,

such as an inpatient program, “would be the first step of me putting my life back together.”

During the sentencing hearing, the State argued that because the appellant had two

prior convictions for simple possession, the trial court should sentence him for a Class E

felony pursuant to Tennessee Code Annotated section 39-17-418(e). The defense argued that

under Tennessee Code Annotated section 40-35-203(e), the State should have alleged in the

indictment that the appellant had two prior convictions for simple possession, and the jury,

not the trial court, was required to find he had those prior convictions in order for the trial

court to enhance punishment pursuant to Tennessee Code Annotated section 39-17-418(e).

The trial court agreed with the State, concluding that Tennessee Code Annotated section 40-

35-203(e) did not apply and that the appellant’s prior convictions for simple possession

should result in his being sentenced for a Class E felony. The trial court then found that his

sentence should be enhanced for his extensive criminal history and his possession of a

firearm during the commission of the offense. See Tenn. Code Ann. § 40-35-114(1), (9). The

court sentenced the appellant as a Range I, standard offender to twenty months in

confinement and imposed a $1,000 fine.

II. Analysis

The appellant contends that the trial court erred by sentencing him for a felony when

the jury convicted him of a misdemeanor and that Tennessee Code Annotated section 39-17-

418(e) is unconstitutional because it allows a trial court to enhance a defendant’s punishment

without prior notice. The State agrees with the appellant that under Tennessee Code

Annotated section 40-35-203(e) the jury was required to find beyond a reasonable doubt that

he had two prior convictions for simple possession before the trial court could sentence him

for simple possession as a Class E felony. Thus, the State concedes that the trial court

improperly sentenced the appellant. We agree with the parties and remand the case to the

trial court in order for the court to resentence the appellant for misdemeanor simple

possession.

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Tennessee Code Annotated section 39-17-418(a) provides that it is an offense for

anyone “to knowingly possess or casually exchange a controlled substance, unless the

substance was obtained directly from, or pursuant to, a valid prescription or order of a

practitioner while acting in the course of professional practice.” Simple possession is usually

a Class A misdemeanor. Tenn. Code Ann. § 39-17-418(c). However, Tennessee Code

Annotated section 39-17-418(e) states that the offense is a Class E felony “where the person

has two (2) or more prior convictions under this section.” Pursuant to Tennessee Code

Annotated section 40-35-203(e),

If the criminal offense for which the defendant is charged

carries an enhanced punishment for a second or subsequent

violation of the same offense, the indictment in a separate count

shall specify and charge that fact. If the defendant is convicted

of the offense, then the jury must find that beyond a reasonable

doubt the defendant has been previously convicted the requisite

number of times for the same offense. Upon such finding, the

defendant shall be subject to the authorized terms of

imprisonment for the felonies and misdemeanors as set forth in

§ 40-35-111.

The Sentencing Commission Comments for Tennessee Code Annotated section 40-35-203

state that “[f]or an example of an application of subsection (e), see § 39-17-418,” and the

Sentencing Commission Comments for Tennessee Code Annotated section 39-17-418 state

that “[t]his section creates an enhanced penalty for third and subsequent offenses.”

The sentencing commission comments clarify that Tennessee Code Annotated section

40-35-203(e) applies to Tennessee Code Annotated section 39-17-418. Therefore, the jury

was to determine whether the appellant had been previously convicted of two or more

offenses that could be used to enhance his punishment for simple possession. The State did

not present any evidence at trial regarding the appellant’s having two prior convictions for

simple possession, and the trial court could only sentence the appellant for a Class A

misdemeanor. Given the plain language in Tennessee Code Annotated section 40-35-203(e),

which requires that a separate count of an indictment be used to allege enhanced punishment

for a subsequent violation, the appellant’s claim that Tennessee Code Annotated section 39-

17-418(e) unconstitutionally allows enhanced punishment without prior notice is moot.

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III. Conclusion

Based upon the record and the parties’ briefs, the appellant’s sentence is reversed and

the case is remanded to the trial court for resentencing.

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NORMA McGEE OGLE, JUDGE

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