### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE November 14, 2023 Session

STATE OF TENNESSEE v. STEPHEN NOVATNE

Appeal from the Circuit Co urt for Rutherford County
No. 81604 James A. Turner, Judge

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No. M2023-00114-CCA-R3-CO

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The Defendant, Stephen Nova tne, pled guilty to possessi ng methamphetamine in a drugfree zone and agreed to serve a sentence of eight years. He later fi led a motion asking the
trial court to resentence him in accordance with the 2020 amendments to the Drug-Free
Zone Act. The trial court declined to do so, finding that resentencing was not in the interests of justice, and the Defendant appeal ed. Because the Defendant does not have an appeal as of right from a denial of re sentencing under the Dr ug-Free Zone Act, we respectfully dismiss the appeal.

Tenn. R. App. P. 3 Ap peal as of Right; Appeal Dismissed

T OM G REENHOLTZ
, J., delivered the opinion of the court, in which R OBERT H.

M ONTGOMERY
, J R ., and T IMOTHY L. E ASTER , JJ., joined.

Heather G. Parker, Murfreesboro, Tennessee, for the appellant, Stephen Christopher

Novatne.

Jonathan Skrmetti, At torney General and Reporter; Lacy E. Wilber, Senior Assistant Attorney General; Jennings H. Jones, Distri ct Attorney General; and Dana S. Minor, Assistant District Attorney General, for the appelle e, State of Tennessee.

OPINION

FACTUAL BACKGROUND

On February 25, 2020, the De fendant pled guilty to the o ffense of possession of less than .5 grams of methamphetam ine with intent to deliver in a drug-free zone, a Class B felony offense. Pursuant to the Drug-Free Zone Act (“DFZ Act”), the trial court sentenced2 the Defendant as a Range I, standard offender to a term of eight years to be served at 100% in the Department of Correction. See Tenn. Code Ann. § 39-17-432(c) (2014).

Within months of the Defe ndant’s sentence, the General Assembly amended the penalties established by the DFZ Act, 1 and two years later, the legislature allowed
defendants who had been sentenced before Se ptember 1, 2020, to ask for resentencing under the amended penalties. See Tenn. Code Ann. § 39-17-432(h) (Supp. 2022). On September 7, 2022, the Defendant filed a moti on asking to be resentenced under the 2020
amendments.

On January 9, 2023, the trial court ente red an order denying the Defendant’s motion for resentencing under the 2020 amendments. In its decision, the trial court gave great weight to the fact that the or iginal sentence was entered pursua nt to a plea agreement. In that agreement, the State offe red multiple concessions, includ ing its agreement to dismiss several cases, to sentence the De fendant as a Range I offender, 2 and to align service of probation revocations concurrently with the DF Z Act sentence. The trial court stated that “[t]o grant Mr. Novatne’s petition would provide him another bite at the apple. The Court
would not be able to afford the same bite to the State gi ven that it voluntarily dismissed charges against Mr. Novatne.”

The Defendant timely appealed the denial of his motion on January 20 , 2023. The State moved to dismiss the appeal, arguing th at Tennessee Rule of Appellate Procedure 3 does not provide an appeal as of right from a denial of resentencing. This Court deferred ruling on the motion until after th e briefing and oral argument were completed. Having now fully considered the issue, we conclude th at the Defendant does not have an appeal as of right from the denial of a motion for resent encing under the DFZ Act. Therefore, we respectfully dismiss the appeal.

1 The Defendant’s offense of possessing less than .5 grams of methamphetamine with intent to deliver was punishable as a Class C felony offense. See Tenn. Code Ann. §§ 39-17-434(e)(1); 39-17- 417(c)(2)(A) (2014). However, because the Defendant committed the offense in a drug-free zone, the DFZ Act required him to be punished for a Class B felony offense. Id. § 39-17-432(b)(1) (2014) (requiring that an offense committed in a drug-free zone “shall be pu nished one (1) classification higher than is provided in § 39-17-417(b)-(i) for such violation.”). The DFZ Ac t also required that he serve at least the minimum
sentence in the enhanced offense class. Id. § 39-17-432(c).

The amendments to the DFZ Act became effectiv e for offenses occurring on or after September 1,
2020. See 2020 Tenn. Pub. Acts, ch. 803, § 12. Among other things, the 2020 amendments made “the sentencing enhancements and mandatory minimum service requirements of Code section 39-17-432 permissive, rather than mandatory.” See, e.g.

, State v. Hamlin , No. E2022-00139-CCA-R3-CD, 2023 WL 177105, at *4 (Tenn. Crim. App. Jan. 10, 2023), perm. app. denied (Tenn. May 10, 2023).

2 The Defendant was otherwise qualif ied as a Range II, multiple offender.3 ANALYSIS

The threshold issue in this case concerns whether this Court has jurisdiction to hear an appeal arising from a denial of resentenci ng pursuant to the DFZ Act. The Defendant asserts that Tennessee Rule of Appellate Pro cedure 3 grants him a right to appeal because he may appeal a sentence that does not resu lt from an agreement. Alternatively, the Defendant argues that due process principles require that he be afforded the right to appeal
in this circumstance. We respectfully disagree.

A. T ENNESSEE R ULE OF A PPELLATE P ROCEDURE 3( B )

With respect to the Defendant ’s first argument, this Court has held that a defendant “does not have an appeal as of right” from a denial of resentencing under the DFZ Act because “[n]either Rule 3 nor the most rece nt amendment to Tenn. Code Ann. § 39-17- 432(h) (2022) provides for an appeal as of right for the defendant.” State v. Bobo , 672 S.W.3d 299, 302 (Tenn. Crim. App. 2023); see also State v. King , No. E2022-01394-CCAR3-CD, 2023 WL 7298753 , at *4 (Tenn. Crim. App. Nov. 6, 2023) (“[W]e conclude that
Defendant’s contention that the language of Rule 3(b) does no t limit his ability to file an appeal as of right [from a denial of resenten cing under the DFZ Act] is without merit.”); State v. Billingsley , No. E2022-01419-CCA-R3-CD, 2 023 WL 4417531, at *6 (Tenn. Crim. App. July 10, 2023) (adopting Bobo and “similarly conclud[ing] that the Defendant in this case does not have a right to an appeal on this issue.”), perm. app. filed (Tenn. Aug. 11, 2023). In contrast, the plai n language of Rule 3(b) allows an appeal when a defendant
is granted a resentencing because the resentencing will produce a new sentence with an amended final judgment. State v. Watson , No. E2022-01321-CCA-R3-CD, 2023 WL 5925717, at *7 (Tenn. Crim . App. Sept. 12, 2023), no perm. app. filed

.
Although the Defendan t acknowledges this Court’s holdings in Bobo and Billingsley , he contends that Rule 3 grants a right to appeal a denial of resentencing. He begins with the premise that Rule 3(b) expr essly allows for an appeal when a defendant pleads guilty, but “there was no plea agreement concerning the sentence[.]” Tenn. R. App. P. 3(b). From this premise, he asserts that, because he has sought to be resentenced under the DFZ Act, he no longer “agrees” to the sentence set forth in his origin al plea agreement. As such, he concludes that he is now entitled to an appeal because no plea agreement exists concerning his sentence. Id.

We are unpersuaded by the De fendant’s argument, particul arly as it relies upon recharacterizing what occurred three years ago. At that time, the De fendant agreed to an eight-year sentence as part of a plea agreement that granted him substantial consideration. The Defendant’s present dissatis faction with his agreed se ntence does not affect the validity of that sentence or his original plea agreement. He cannot, by a legal fiction,4 simply withdraw his “agreement” and create a ri ght of appeal that does not otherwise exist by law. Importantly, the trial court here left the long-standing status quo in place, and the original judgment of conviction is unaffected. Cf. Watson , 2023 WL 59257 17, at *7. As we recognized in Bobo , the plain language of Rule 3(b) does not grant the Defendant a right to an appeal in this circumstance. The Defendant’s argument is without merit.

B. D UE P ROCESS P RINCIPLES

In the alternative, the Defe ndant argues that due process principles require that he be granted an appeal from the denial of his re quest for resentencing. We again respectfully disagree.

No party had a right to an appeal at common law. State v. Bockman , 201 S.W. 741, 742 (Tenn. 1918). Our state c onstitutions have not textually recognized the right to an appeal, and our present Constituti on expressly allows the right to appeal to be restricted and regulated by law. Tenn. Const. art. VI, § 2; Arroyo v. State , 434 S.W.3d 555, 559 (Tenn. 2014). Indeed, as our supreme court has recognized,

The right of appeal is not fixed by our Constitution further than to insure that the Supreme Court shall have the right of supervisory review over all inferior tribunals. Every man has a right to his da y in Court, that is to have a hearing after due notice, but it by no means follows that he has a right to have the first hearing reviewed by a higher Court.

Real Est. Comm’n v. McLemore , 306 S.W.2d 683, 686 (Ten n. 1957). As such, the constitutional rights guaranteed to the crimin ally accused by our st ate Constitution “do not include a right to appellate review.” State v. Bates , 804 S.W.2d 868, 883 (Tenn. 1991). 3

Likewise, the Fourteenth Amendment to the United St ates Constitu tion does not guarantee the right to appeal in a state criminal case. See Jones v. Barnes , 463 U.S. 745, 751 (1983) (“There is, of course, no constitutional right to an appeal[.]”); cf. also Davila v.

Davis , 582 U.S. 521, 531 (2017) (“ The Constitution twice guarantee s the right to a criminal trial, but does not guarantee the right to an appeal at all.” (citation omitted)). Indeed, the Supreme Court has recognized th at this principle is so well-settled that “[a] citation of authorities upon the point is unnecessary.” McKane v. Durston , 153 U.S. 684, 687 (1894);
see also Reetz v. People of State of Michigan , 188 U.S. 505, 508 (1 903) (“Neither is the right of appeal essential to due process of law. In nearly ever y state are statutes giving, in

3 Of course, if a right to appeal is statutorily available in a particular case, then “the proceedings must comport with constitutional standards.” Serrano v. State , 133 S.W.3d 599, 604 (Tenn. 2004).5 criminal cases of a minor nature, a single trial, without any right of review. For nearly a century, trials under the Federal practice for ev en the gravest offenses ended in the trial court, except in cases where tw o judges were present and certif ied a question of law to this court.”).

Because neither the federal nor state cons titution guarantees the right to an appeal, our supreme court has recognized that a defenda nt “has no appeal as of right unless it is enumerated in Rule 3(b)” of the Tennessee Rules of Appellate Procedure or by a separate

statute. State v. Rowland , 520 S.W.3d 542, 545 (Tenn. 2017); State v. Lane , 254 S.W.3d 349, 352 (Tenn. 2008) (“Unlik e civil litigants, who have an appeal as of right from any final judgment, parties in criminal cases do not always have an appeal as of right under the Rules of Appellate Procedure.”); Tenn. R. Crim . P. 37(b) (“The defendant or the state may appeal any order or judgment in a criminal proceeding when the la w provides for such appeal.”). As such, we disagree that due process principles grant the Defendant a right of appeal not otherwise recogni zed by statute or rule.

In a variation on the theme, the Defendant argues that it “defies logic” for the General Assembly to create a right to rese ntencing but then deny meaningful appellate review. He also asserts that the resentencing statute would be “pointless” without a right to appeal. For two reasons, we again respectfully disagree.

First, it is not unusual for the law to restrict the right to appeal when, as here, a trial court reaffirms the status quo and leaves an original lawful judgment in place. For example, the General Assembly ha s restricted the right of appe al when a trial court denies a motion to reopen a post-conviction petition. See Tenn. Code Ann. § 40-30-117(c) (recognizing appeal by permission only). In addition, a defendant has no right to appeal from the following types of orders where th e original judgment remains unaffected:

 orders denying a motion to mo dify a condition of probation, Lane , 254 S.W.3d at 353;

 orders denying a motion to correct an illegal sentence, at least before an
amendment to Tennessee Rule of Appellate Procedure 3(b), Moody v. State

, 160 S.W.3d 512, 516 (Tenn. 2005);

 orders denying a motion to reinstate probation, State v. Moses , No. W2011- 01448-CCA-R3-CD, 2011 WL 6916487, at *1-2 (Tenn. Crim. App. Dec. 28, 2011), no perm. app. filed ;

 orders denying a motion for a furlough, State v. Bean , No. M2009-02059- CCA-R3-CD, 2011 WL 917038, at *2 (Tenn. Crim. App. Mar. 16, 2011), no perm. app. filed ;6  orders denying a motion for relief from judgment, Schreane v. State , No. E2012-00954-CCA-R3-CO, 2013 WL 5516430, at *3 (Tenn. Crim. App. Oct. 2, 2013), perm. app. denied (Tenn. Jan 14, 2014); and

 orders denying a motion to susp end payment of court costs, State v. Hegel

, No. E2015-00953-CCA-R3-CO, 2016 WL 3078657, at *1-2 (Tenn. Crim. App. May 23, 2016), no perm. app. filed

.

Rowland , 520 S.W.3d at 545 (also id entifying other examples); see also State v. Sales , No. M2022-01077-CCA-R3-CD, 2023 WL 2681899, at *3 (Tenn. Crim. App. Mar. 29, 2023) (holding that no appeal exists when a tria l court denies a motion to vacate judgments alleged to be improperly entered by the clerk), perm. app. denied (Tenn. Aug. 8, 2023).

Although the DFZ Act now authorizes limited senten cing relief, it also expressly recognizes that a trial court is not required to grant that relief. Tenn. Code Ann. § 39-17- 432(h)(4) (“This subsection (h) does not require a court to re duce any sentence pursuant to this section.”). In this circumstance, as in others, the General Assembly may reasonably restrict or extend the right of appeal as it deems appropriate. See James v. Kennedy , 129 S.W.2d 215, 216 (Tenn. 1939) (recognizing that the jurisdiction of the appellate courts “may be abridged or extended by the Legi slature as public policy may require”). The failure to provide for an appeal when a trial court leaves a lawful sentence in place is neither unreasonable nor illogical.

Second, insofar as the Defendant argues th at the resentencing statute would be “pointless” without a right to appeal, we acknow ledge that one may agree or disagree with him as a matter of public policy. But “[p]r operly conceived, the j udicial power is not a grant of authority for courts to choose betw een optimal goals for a dvancing public policy.”
See Black v. State , No. M2022-00423-CCA-R3-PD, 2 023 WL 3843397, at *12 (Tenn. Crim. App. June 6, 2023) (citing Coffman v. Armstrong Int’l, Inc. , 615 S.W.3d 888, 899 (Tenn. 2021)). To that end, we will not ma ke the DFZ Act say some thing that it does not under the guise of “interpreting” the statute. The Defendant’s polic y arguments, such as they are, “must be made to the General Assembly , not to this Court.” City of Knoxville v. Netflix, Inc. , 656 S.W.3d 106, 115 (Ten n. 2022) (citation and in ternal quotation marks omitted). The Defendant is not entitled to relief.

CONCLUSION

In summary, we hold that the Defendant does not have a right to appeal from a trial court’s denial of resentencing under the Drug-Fre e Zone Act. We also hold that principles of due process do not grant a ri ght to appeal that is not ot herwise permitted by any statute7 or the Tennessee Rules of Appellate Procedure. We respectfully affirm the judgment of
the trial court.

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_______________ ___________ TOM GREENHOLTZ, JUDGE