# FILED
December 18, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1997 SESSION

BRUCE C. SLATER, * C.C.A. # 03C01-9702-CR- 00061 Appellee, * KNOX COUN TY VS. * Hon. Richard M. Ba umgartner, Jud ge STATE OF TENNESSEE, * (Post-Conviction--State Appeal)

Appellant. *

For Appellee : For Appellant : Allen E. Schwartz John Knox Walkup 603 Main Street Attorney General and Repor ter Suite 405 Knoxville, TN 37902 Marvin E. Clements, Jr. Assistant Attorney Gener al Aubrey Davis 450 James Robertson Parkwa y Assistant Public Defender Nashville, TN 37243-0493 1209 Euclid Avenue Knoxville, TN 37921 Marsha Selecman Assistant District A

ttorney General City-County Buil ding, Suite 168 400 Main Street Knoxville, TN 37902-

2405

OPINION FILED:__________________________

REVERSED AND REMAND ED

GARY R. WADE, JUDGE2 OPINION The state appeals from a judgment by the trial court reduci ng the sentence of petitioner, Bruce Sl ater. In 1987, the petitioner c ommitted bank robbery. He was s

entenced in 1991. The petitioner so ught relief from the length of his sentence through the Post -Conviction Procedur

e Act. The primary issue presented for our review is whether the petitio ner should have been sentenced under the 1982 Sentencing Act or the 1989 Sentencing Act. A secondary issue relates to procedure and jur isdiction. We reverse the judgment of the trial cour t and remand the cause for a recalculat ion of the sentence.

On May 26, 1991, t he trial court sen tenced the pe titioner to a Ran ge III, thirty-year

sentence under the terms of the 1989 C riminal Code. Thereafter, the petitioner filed this petition alleging his counsel was ineffective for failing to ensu re he was sentenced in accordance with law. At the conclusion of the evidentiary hearing, the trial cour

t applied the 1989 Act and entered an order reducing the petitioner's sentence to Range III, fifteen years.

I Tennessee Code Annotated § 40-35-117 pr ovides that persons sentenced after November 1, 1989, for crimes committed between Ju ly 1, 1982, and November 1, 1989, must be sentenc ed under the 1989 Act, "[u]nless pr ohibited by the United States or Tennessee Co nstitution." Tenn. Code Ann. § 40-3 5-117(b). Also, Tenn. Code Ann. § 39-11-112 provides that if the 1989 Act provides for a "lesser penalty," punishment shall be imposed in accordanc e with the 1989 Act.

In State v. Pearson , 858 S.W.2d 879 (Te nn. 1993), our supreme court set forth guidelines for making certain the sentence impose d is constitutional:3 [I]n order to comply w

ith the ex post facto prohibitions of the U.S. and Tennessee Constituti ons, trial court judge s imposing sentences after the effectiv e date of the 1989 statute, for crimes committed prior thereto, must calculate the appropriate se ntence under both the 1982 statute and the 1989 statute, in thei r entirety, and then impose the lesser sentence of the tw o. This petitioner was conv icted of bank robbery. See Tenn. Code Ann. § 39-2-502 (repealed 1989). The j udgment form reflects that the tri al court, relying on the 1989 Act, treated the offense as a Cl ass B felony and imposed a Rang e III, thirty-year sente nce. The statutory range was between twenty and thirty years. Tenn. Code Ann. § 40-35-112. Because the record does not contain any of the proceedings from the origi nal trial, sentencing h earing, or direct appeal , we cannot determine how the trial j udge arrived at a thir ty-year sentence.
The petitioner argues that when the trial court imposed sentence, it misclassified the bank robber y as a Class B felony. The petitioner insists tha t it was a Class C felony under the 1989 Act. A Range III, Cl ass B sentence is twenty to thirty years; by

comparison, a Range III, C lass C sentence is only ten to fifteen years. Tenn. Code Ann. § 40-35- 112(c). The petitioner pointe d out that the 1989 Act does not recognize a separate crime of bank robbery . Instead, the Act both defines and provides punishment for robbery, aggravated robbery, and especially aggravated robbery . Tenn. Code Ann. §§ 39-13-401, -402, -403. At the postconviction hearing, the petitioner argued that bec ause the elements of the offense of bank robbery most closel y matched the elements of simple r obbery under the 1989 Act, a bank robbery must be classified as a robbery, a Class C felony. SeeTenn. Code Ann. § 39-1 3-401. The tria l court agreed and reduced the sen tence to Range III, fifteen years.

The 1982 Act did not grade offenses the w ay the 1989 Act does. Bank4 robbery was not a g raded offense under the 1982 Act. In conduct ing a Pearson analysis, the trial court would have to c alculate the sentence under both t he 1982 and 1989 Acts and then impose the less er sentence. 858 S.W.2d at 884. The question is how to calculate a sentence under the 1989 Act for an of fense that did not survive the enactment of the new act and, thus, is not graded. The trial court compared the statutory elements of bank robbe ry with the elements of the robbery offenses defined in the 1989 Act and graded t he conviction offense according ly.

The legislature provi ded a classification sys tem for converting felonies defined by prior law i nto the categories adopted by the new Act. Robert Lynn Godsey v. State , No. 03C01-9308-CR-00280, slip op. at 8 (Tenn. Crim. Ap p., at Knoxville, Aug. 11 , 1994). This system is set forth in Tenn. Code Ann. § 40-35- 118 and is essentially a l isting of every offense in existence prior to enac tment of the 1989 Act accompanied with a classification as either C lass A, B, C, D, or E felony

. In Godsey , the defendant was convicte d of grand larceny, as defined by the 1982 Act, but was sentenced after pas sage of the 1989 Act. Godsey , slip op. at 2. He filed a post-conviction petition alleging that he should have been "sentenced under the 'theft of property' statutes in the 1989 revision of the c riminal code." Id. , slip op. at 4. Our court rejected this contention and ruled that Section 40-35-118 was controlling on how t

o treat the grand larceny conviction for sentencing under the 1989 Act. Id. , slip op. at 8.

The Sentencing Commission Comments to this section provi de guidance: This section classifies felony offenses in title 39 which

were in existence p rior to November 1, 1989.

... [P]ersons sentenced on or after N ovember 1, 1989, for an offense committed between July 1, 1982 and November 1, 1989, must be sentenc ed under the provisions of this chapter. ... The new definitions and5 classifications cannot be utilized for offense s which occurred prior to Nov

ember 1, 1989, because, in many instances, the elements of the off ense are completely different. Consequently, ... this section sets forth the felony classification which is to be utilized for those offenses which occurred pri or to November 1, 1989, when the sentencing takes place after that date. Tennessee Code Annotated § 40-35-118 cont rols the disposition of this case. See also Pearson , 858 S.W.2d at 883 (relying on Tenn. Code An n. § 40- 35-118 to conclude that "[u]nder th e 1989 statute, first-degree burglary is clas sified as a Class C felony"). By the terms of that provision it is apparent that the trial court erred by amending the judg ment to indicate that the petitio ner had been convicted of a Class C felony instead of a Class B felony. That determi nation, however, does not end our inquiry. We do not have the r ecord of the original sentenc ing hearing before us; in consequence, this court can neither conduct a review of the sentence or calculate an appropriate sentence under the terms of the 1982 Ac t. We must, therefore, remand this action for a recalculation of the sentence under the 1982 Act. That is essential to ensure th at the petitioner is not subj ected to an ex post facto violation. Pearson , 858 S.W.2d at 884.

The state argues that because both the trial court and the postconviction court imposed maximum sentences, any calculation under the 1982 Act would also result in the maximum sentence of forty y ears. The state reasons that the petitioner has not suffered an ex post facto violation.

Under the 1982 Act, the sentenci ng range for bank robbery is twenty to forty years. Tenn. Code Ann . § 39-2-502 (repealed 1989). The amount of time the trial court could law

fully order the petitioner to serve would, how

ever, depend on whether the petitioner i s classified as a "persist ent offender." See Tenn. Code Ann. §§ 40-35-106, -109 (repealed 1989 ).6 Under the 1982 Act, a Range I sentence is "not less than the mi nimum sentence ... and not more than the minimum plus one-half (1/2) of the difference between the maximum sentence and the minimum sentence." Tenn. Code Ann. § 40-35-109(a)(repealed 1989) . Thus a Range I sentence for bank robbery would be twenty to thirty years. A Range II sentence is "not less than the minimum sentence plus one-half (1/2) of the difference betw een the maximum and the minimum sentence, and not more than the maxi mum sentence as provided by law." Tenn. Code Ann. § 40-35-109(b) (repealed 1989). That estab lishes a Range II sentence at between thirty and fort y years.
Whether the petitione r received a Range I or II sentence would depend, in part, on whether he would qualify as a persistent offender under the older act. The 1982 Act defines a per sistent offender differently than the 1989 Act; it excludes from consider ation certain convicti ons that are over five y ears old and others that are over ten y ears old. Tenn. Code Ann. § 40-35- 106 (repealed 1989). In contrast, the 1989 Act considers "[a]ll prior felony convictions including those occurring prior to November 1, 1989." Tenn. Code Ann. § 40-35-107(b)(2). That the defendant likely qualifies as a persistent offender under the 1989 Act does not necessarily mean that he w ould be so classified under the 1982 Act.
If the petitioner were a st andard offender under the 1982 Act and received a Range I sent ence, the maximum he could be sentenc ed to would be thirty years w

ith a release eligibi lity of thirty perc ent. Tenn. Code Ann. § 40-35- 501(repealed 1989). Thus, even though the amount of time ordered under both acts would be the same (thi rty years), the 1989 Act imposes a release eli gibility of forty-five percent, w

hereas the 1982 Act imposes a thi rty percent release el igibility. "[T]he repeal of parole eligibi lity standards prev iously available t

o an inmate7 implicates the Ex Post F acto Clause if the effect of the repeal is to impose a greater or more severe punishment tha n was proscribed by law at the time of the offense." Kaylor v. Bradley , 912 S.W.2d 728, 732 (Tenn. App. 1995). See also Lynce v. Mathis , _____U.S._____, 117 S. Ct. 891 (1997); Weaver v. Graham , 450 U.S. 24 (1981).
A remand is the proper remedy . The trial court must impose the lesser of the two possible sentences.The sentencing should be based on findings of fact, including how the tr

ial court arrived a

t the specific offender classificati on as well as what enhancement factors applied.

II

The petitioner argues the sta te has no right to appeal the postconviction court's det

ermination, relying

on the statute governing when the state may appeal a sentencing deter mination. See Tenn. Code Ann. § 40-35-402. The post-conviction ruli ng, however, is governed by Tenn. Code Ann. § 40-30-122 (repealed 1995), which provides as follows:

The order granting or den ying relief under the pr ovisions of this chapter shall be deemed a final judgment and an appeal may be taken to the court of criminal appeals in the manner prescribed by t he Tennessee Rules of Appellate Procedure. Thus, the state has a right to appeal the trial court's granting of post-conv

iction relief. Tenn. R. App. 3.

The state

argues the post -convi ction c

ourt had no juri sdicti on to modi fy the final judgment of the trial c ourt, insisting that "th e post-conviction cour t's action amounted to it going behind the lawfully entered v

erdict of the jury, and reinterpreting the ev

idence to come up with a new verdict under the 19898 sentencing act." Our cour t has rejected the notion that a post-conviction court may not correct an unconstituti onal sentence:

The Post-Conviction Proc edure Act was created to address and remedy constitutional wrongdoing in the conviction or sentencing process .... Effectively, this act provides procedural aut hority for a court to re open the original case in order

to right a constitutio nal wrong. ... Therefore, in some circumstances w hen the remedy requires a new tri al, a case is returned to the pretrial stage, while in other

circumstances the remedy does not require a new tri al, but may require r eturning a case to the presentencing stage.
Sills v. State , 884 S.W.2d 139, 142-43 (Tenn. Crim. App. 1994) (footnot e omitted). We continue to adhere to that view.

Accordingly, the judgment of the trial court is reversed. This cause is remanded for a calculation of sentence.

__________________________________ Gary R. Wad e, Judge CONCUR:

_________________________________ Paul G. Summe rs, Judge

__________________________________ William M. Barker, Judge