# FILED
October 13, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER SESSION, 1996 ROBERT IRWIN GWIN, ) C.C.A. NO. 02C 01-9512-CR-00380 ) Appellant, ) ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. BROWN, JR. STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT : FOR THE APPELLEE : D. TYLER KELLY CHARLES W. BURSON Hardee, Martin & Jayne s, P.A. Attorney General and Repor ter 213 E. Lafayette Street Jackson, TN 38301 WILLIAM DAVID BRIDGERS Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 JOHN H. PIE ROTTI District Attorney General JOHN CAMPBELL Assistant District A

ttorney 3rd Floor, Criminal J ustice Complex 201 Poplar Memphis, TN 38103
OPINION FILED ________________________ REVERSED AND REMAND ED JERRY L. SMITH, JUDGE-2- 

## OPINION Appellant Rober

t Irwi n Gwin appeals fr om the dismissalof his pet ition for post-convict ion relief . On May 21, 1973, Appellant was found guilt y of first degree m urder in the perp etration of a felony and was senten ced to 100 ye ars imprisonment. This Court af firmed the convicti on in Gwin v. S tate , 523 S.W.2d 636, 639 (Tenn. Crim. App. 1975). I n January 1979, f ormer Governor Ray Blanton commuted Appell ant’s sentence to ti me served. On April21, 1994 , the T enne ssee Boar d of Pa rdons and P aroles regain ed cu stody o f Gwin from the Georgia Department of Corr ection due to an alleged commutati on violat ion. On December 20, 1994, former Governor Ned McWherter revoked thecommutati on t here by rein stati ng t he or igi nal 100-year sentence . On November 16, 1995, Appel lant fi led a pro se petiti on for post- convicti on relief which all eged that he received an unconst ituti onal sentence. For the reasons stated bel ow, we reverseand remand the judgment of the post-convicti on court.
Appellant ar

gues that he was sentenced under a stat ute which was declare d unco nstitutiona l by the Te nness ee Sup reme C ourt case of State v. Hailey , 505 S.W.2d 712 (Tenn. 1974), and that th erefore t he sentence he receive d was null an d void. T he Sta te claim s that A ppella nt’s pe tition is barred by t he statute of limi tations found in Tennessee Code Annotated Sectio n 40-3 0-102 (1990 ) (repe aled). W hile ac know ledgin g that h is petitio n is well beyond t he applicabl e three year statute of limi tations, Appellant al leges that his sentence is v

oid and il legal and may be chal lenged any ti me.-3- An analysis of

Appellant’ s claims requi res a synopsi s of the hi story of Tennessee statutes

governing t he punishment for murder. In 1915, the Tennessee state l egislat ure enacted Chapter 181 of the Publ ic Acts of 1915 (the 19 15 Ac t) which abolis hed th e dea th pen alty in T enne ssee and re place d it with a mandatory

sentence of l ife impri sonment. 1915 Tenn. Pub. Act s, Ch. 181. In 1919, the legi slature adopted Chapter 5 of t he Public Acts of 1919 (the 1919 Act)which provi ded that person s convicted of murder would be sentenced to deat h, or if the jury believed t hat there wer e mitigat ing circumstances, they could impose a sentence of life or some period over twenty years. Tenn. Code Ann. § 39-2406 (1955 & 1972 replacements) (repealed) . Appellant was sentenced under t his stat ute. In June of 1972, t he United States

Supreme Court decided Furm an v. G eorgia , 92 S.Ct. 2726 (1972), whi ch acknowledged certain consti tutionalrestri ctions on t he impositi on of the deat h penalty by states. In 1973, t he legisl ature enacted Chapter 192 of t he Public Acts of 1973 (the 1 973 Act), whi ch repealed sect ion 39-2406 and replaced it with a new secti on 39-2406. 1973 Tenn. Pub. Acts, Ch. 192, § 2. Under

the new secti on 39-2406, a j ury could sentence a person convicted of m urder to death , life imprisonmen t or some pe riod over twentyfive years. In February 1974, t he Tennessee Supreme Court in State v. Hailey held that the 1973 Act was unconst ituti onal as it embraced more than one subject a nd was broade r than its title. 505 S.W .2d 712 , 715 (T enn. 19 74). In response to t he Hailey and Furman decisions, the T ennesse e legislature enacted Chapter 462 of the Public

Acts of 1974 (the 1974 Act) whichprovided that all pers ons co nvicted of firs t degree murde r would re ceive the d eath penalt y. 19 74 Tenn. Pub. Act s, Ch. 462. I n 1977, in re sponse to sever al U.S. Supreme Court cases interpreti ng the Fift h and Fourteen Amendments to t he-4-

U.S. Constit ution as pr ohibiti ng a mandatory death pen alty, the Tennessee Supreme Court decided Collins v. S tate , 550 S.W.2d 643 (Tenn. 1977), which declared the 1974 Act unconsti tutional . It al so held that the inval idation of the 1974 Act revi ved the 1919 Act’ s sentencing pr ovisions, with the ex

ception of 1919 Act’s deat h penalty pr ovision whi ch the Court hel d did not pre scribe suffic iently

detaile d procedures to accomplish “cont rolled di scretion” as required by Furm an v. G eorgia when a jury i mposed a death sentence. 550 S.W.2d at 646. In Apri l 1977, Chapter 51 of the Publ ic Acts of 1977 (the 1977 Act) was enacte d which again m ade the impos ition of the de ath pen alty discreti onary wit h the jury . 1977 Tenn. Pub. Acts, Ch. 51. I n 1979, the Tennessee Supreme Court decided Miller v. State , which he ld that life imprisonm ent was the e xclusive punishm ent for first degree m urder for a defendant convi cted of murder bef ore the effective date of the 1977 Act . 584 S.W.2d 758, 762 (Tenn. 1979). The Court noted th at the Collinsdecision effectively inva lidated all de ath pen alty provision s going b ack to the 1915 A ct, which had life impris onm ent as the so le pun ishm ent for m urder . It also h eld that because t he 1919 Act did not have a severabi lity

clause, al l of the senten cing prov isions of the 1919 A ct were u ncons titutional, not ju st the dea th penalty pr

ovision. 584 S.W.2d at 765. In s everal cases this Court has followed Miller

and m odified sente nces to life im prison men t. For ins tance , in Wy nn v. State , we modifi ed the 99-year sentence of a defendant convic ted of murder under the 1 919 Act

to l ifeimpr ison ment. No. 03 -C-0 1-921 2-CR00399; 1993 WL 153198, at *1 (Tenn. Crim. App., May 12, 1993). Our decision i n Wynn had the effect of red ucing the amou nt of time W ynn had to
serve before he wa s eligible for paro le. App arently , this is wh y App ellant is appealing hi s 100-year sentence.-5- As stated prev iously, Appellant c laims that he was sentenced under t he statute which w as declared unconstitutional by State v. Hailey , 505 S.W.2d 712. In Hailey , Chapter 192 of the Public

Acts of 1973 was decl ared
uncon stitutional. Id. at 714. Appel lant was sentenced under the 1919 Act and therefore , Hailey

does not support

Appellant’ s positi on. Neverthel ess, the statute Appel lant was sentenced under, Chapter 5 of the Publi c Acts of 1919, was de clared un constitution al in the T ennes see Su preme Court de cision of Miller v. State , 584 S.W.2d 758, 765 (Tenn. 19 79). The State acknowledges that an il legal sentence may be challenged an d corrected at any time. See State v. Burkha rt , 566 S.W .2d 871 , 873 (T enn. 19 78). How ever, the S tate further arg ues tha t an “illegal se ntence ” within the m eaning of Burkhart is a senten ce imp osed in d irect contra vention o f the expre ss provisio ns of a statute . Since , Appe llant’s se ntenc e was perm itted by th e mu rder sta tute in effect when hewas convicted, the State argues that, despite t he later dec lared
uncon stitutionality of the statute, the senten ce is me rely voidab le, not void. Therefore, the State maintains any post-convicti on petition seeking to correct the sen tence m ust be filed within the a pplicable statute of lim itations for po stconvicti on petiti ons. Because Appell ant waited wel l-beyond t he limitations period to file his petition th e State m aintains A ppellant is n ot entitled to re lief.

We are not inclinedto read Burkhart in the ni ggardly fashion suggested by the Sta te. W hile it is true that Burkhart itsel f dealt with a sentence i mposed in contrav

ention of a statute, nothing i n that opi nion li mits the def initi on of an illegal sentence to the situati on posed in that case. We hold that a sentence imposed under a stat ute that has been declared unconst ituti onal by our highest state court i s an ill egal sentence and may be corrected at any time.-6- Accordingly , the judg ment of the post-convict ion court i s reversed; Appe llant’s se ntenc e is mo dified to a term of life im prison men t. This c ase is remanded to the trial court for execution of j udgment and collection of costs.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ DAVID H. WELLES , JUD GE