State of Tennessee v. Michael Eugene Tolle ( 2019 )

11/27/2019
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 7, 2019 Session
STATE OF TENNESSEE v. MICHAEL EUGENE TOLLE
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Knox County
No. 100047 Bobby R. McGee, Judge
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No. E2017-00571-SC-R11-CD
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This is the third in a succession of three cases concerning Section 5 of the Public Safety
Act of 2016, which took effect on January 1, 2017, and amended Tennessee Code
Annotated section 39-14-105, the statute providing for grading of theft offenses. In 2012,
before the amended version of the statute took effect, Michael Eugene Tolle, the
defendant, pleaded guilty to theft of property in the amount of more than $500 but less
than $1,000, a Class E felony at the time of the offense, and he was sentenced
accordingly. In 2017, following the revocation of his probation, the trial court applied
the amended version of the statute, which graded theft in the amount of $1,000 or less as
a Class A misdemeanor, and imposed a Class A misdemeanor sentence. The State
appealed. The Court of Criminal Appeals, after determining that it had authority to
consider the issue raised by the State, vacated the sentence and remanded for entry of a
sentence reflecting his conviction for a Class E felony. We granted the defendant’s
application for permission to appeal in this case in order to consider (1) whether the State
had the right to appeal the trial court’s revocation order, and (2) whether the defendant,
who was originally sentenced under the prior version of the statute, may benefit from the
lesser punishment under the amended version of the theft grading statute following the
revocation of his probation. We conclude that, pursuant to Tennessee Rule of Criminal
Procedure 35, the intermediate appellate court acquired jurisdiction of the State’s claim
when the defendant, in effect, filed a Rule 35 motion for reduction of sentence. In
addition, while we agree with the Court of Criminal Appeals’ determination that the
Criminal Savings Statute applies to the amendments to Tennessee Code Annotated
section 39-14-105, we also agree with its ultimate conclusion that the trial court exceeded
its authority in modifying the offense class and sentence pursuant to the amended version
of the statute following the revocation of his probation. We, therefore, affirm the
judgment of the Court of Criminal Appeals and remand to the trial court for the entry of a
modified judgment consistent with this opinion.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed; Case Remanded to the Trial Court
ROGER A. PAGE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK, SHARON G. LEE, and HOLLY KIRBY, JJ., joined.
Mark E. Stephens, District Public Defender, and Jonathan Harwell, Assistant District
Public Defender, for the appellant, Michael Eugene Tolle.
Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; Nicholas W. Spangler, Assistant Attorney General; Charme P. Allen,
District Attorney General; and Ashley McDermott, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
In August 2012, the defendant pleaded guilty in the Knox County Criminal Court
to two counts of theft: theft of property valued at more than $500 but less than $1,000
(Count 1), which then constituted a Class E felony; and theft of property valued at $500
or less (Count 2), which constituted a Class A misdemeanor. In accordance with his plea
agreement with the State, the defendant was sentenced to concurrent sentences of two
years for Count 1 and eleven months, twenty-nine days for Count 2 to be served in the
Tennessee Department of Correction. On December 22, 2012, the defendant was placed
on determinate release probation.1 Six months later, a probation violation warrant alleged
that the defendant had violated the terms of his release.
On May 27, 2014, the defendant was taken into custody in South Carolina, where
he remained until December 2016. On December 23, 2016, the defendant was transferred
1
“Notwithstanding any other law, inmates with felony sentences of two (2) years or less shall
have the remainder of their original sentence suspended upon reaching their release eligibility date.”
Tenn. Code Ann. § 40-35-501(a)(3).
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to Jefferson County, Tennessee, where he faced charges of burglary and theft, to which
he pleaded guilty in exchange for a three-year sentence. The defendant was then
transferred to Knox County to answer the 2013 probation violation warrant.
Concerning the warrant, the defendant filed a motion to dismiss in which he
primarily argued that the State’s failure to prosecute while he was incarcerated in South
Carolina violated his right to a speedy trial. In the alternative, the defendant requested
that his sentence reflect the amendments to the theft grading statute, Tennessee Code
Annotated section 39-14-105(a), and that he be granted credit for time served in South
Carolina. The defendant cited to the Public Safety Act of 2016, which amended the theft
grading statute, effective January 1, 2017. He noted that under the amended version of
the theft grading statute, his 2012 conviction for theft of property valued at more than
$500 but less than $1,000 would constitute a Class A misdemeanor, rather than a Class E
felony. Therefore, the defendant argued, pursuant to the Criminal Savings Statute,
Tennessee Code Annotated section 39-11-112, “[the defendant] is entitled to be punished
under the new, more lenient regime.”
The trial court held a revocation hearing on February 23, 2017, at which the
defendant conceded that he violated the terms of his probation; however, he again argued
that the probation violation warrant should be dismissed for the reasons outlined in his
motion to dismiss. Notably, the defendant pointed to Rule 35 of the Rules of Criminal
Procedure for the trial court’s authority to reduce the defendant’s sentence within 120
days of his probation revocation. See Tenn. R. Crim. P. 35 (a) (“The trial court may
reduce a sentence upon motion filed within 120 days after the date the sentence is
imposed or probation is revoked.”).
The State argued that the delay in a hearing occurred as a result of the defendant’s
own misconduct, which led to his incarceration in South Carolina, and thus, no speedy
trial violation had occurred. The State also opposed the defendant’s request for
resentencing under the amended theft grading statute, arguing that the Criminal Savings
Statute does not apply to sentencing following a probation revocation. The State further
contended that the defendant was not entitled to credit for time spent incarcerated in
South Carolina.
In its order entered on February 24, 2017, the trial court found that the defendant
had violated the terms of his probation and denied the defendant’s motion to dismiss.
The court found the defendant’s speedy trial claim to be without merit but elected to
reduce the defendant’s sentence to eleven months, twenty-nine days for a Class A
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misdemeanor. The defendant was not granted credit for his time served in South
Carolina but did receive credit for time served in Knox County.
The State filed a notice of appeal challenging the trial court’s decision to reduce
the defendant’s sentence, citing Tennessee Code Annotated section 40-35-402 as its
statutory basis for the right to appeal. The Court of Criminal Appeals determined that the
State’s appeal was improperly filed but elected to treat the appeal as a petition for the
common law writ of certiorari. State v. Tolle, No. E2017-00571-CCA-R3-CD, 2018 WL
1661616, at *6-7 (Tenn. Crim. App. Mar. 19, 2018), perm. app. granted (Tenn. Aug. 9,
2018). After determining that the trial court erred in altering the class of the conviction
offense following the revocation of the defendant’s probation, the intermediate appellate
court vacated the trial court’s order modifying the defendant’s sentence to eleven months,
twenty-nine days for a Class A misdemeanor. Id. at *11.
II. ISSUES PRESENTED
We granted the defendant’s application for permission to appeal in this case in
order to consider the following issues:
1. Whether the Court of Criminal Appeals erred in considering the State’s
appeal of the trial court’s application of the Criminal Savings Statute in
altering the class of the conviction offense under the amendments to
Tennessee Code Annotated section 39-14-105 following the revocation
of the defendant’s probation.
2. Whether the defendant, who was originally sentenced under the prior
version of the statute, may benefit from the lesser punishment under the
amended version of Tennessee Code Annotated section 39-14-105
following the revocation of his probation.
For the following reasons, we affirm the judgment of the Court of Criminal
Appeals.
III. ANALYSIS
At the outset, we note that this case involves multiple issues of statutory
construction. As issues involving statutory construction present questions of law, we
review such questions de novo with no presumption of correctness. State v. Dycus, 456
S.W.3d 918, 924 (Tenn. 2015) (citing State v. Springer, 406 S.W.3d 526, 532-33 (Tenn.
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2013); State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010); State v. Wilson, 132 S.W.3d
340, 341 (Tenn. 2004)); Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009).
When engaging in statutory interpretation, “well-defined precepts apply.” State v.
McNack, 356 S.W.3d 906, 908 (Tenn. 2011). “The most basic principle of statutory
construction is to ascertain and give effect to the legislative intent without unduly
restricting or expanding a statute’s coverage beyond its intended scope.” Owens v. State,
908 S.W.2d 923, 926 (Tenn. 1995) (citing State v. Sliger, 846 S.W.2d 262, 263 (Tenn.
1993)); Carter, 279 S.W.3d at 564 (citing State v. Sherman, 266 S.W.3d 395, 401 (Tenn.
2008)). In construing statutes, Tennessee law provides that courts are to avoid a
construction that leads to absurd results. Tennessean v. Metro. Gov’t of Nashville, 485
S.W.3d 857, 872 (Tenn. 2016). “Furthermore, the ‘common law is not displaced by a
legislative enactment, except to the extent required by the statute itself.’” Wlodarz v.
State, 361 S.W.3d 490, 496 (Tenn. 2012) (quoting Houghton v. Aramark Educ. Res., Inc.,
90 S.W.3d 676, 679 (Tenn. 2002)), abrogated on other grounds by, Frazier v. State, 495
S.W.3d 246 (Tenn. 2016). “When statutory language is clear and unambiguous, we must
apply its plain meaning in its normal and accepted use, without a forced interpretation
that would extend the meaning of the language . . . .” Carter, 279 S.W.3d at 564
(citations omitted).
A. Jurisdiction
We first consider, as we must, whether this Court is authorized to hear the case
before us. Concerning the State’s right to appeal in a criminal case, this Court has
previously explained:
Under the common law, as understood and applied in the United States,
neither a state nor the United States had a right to appeal in a criminal
prosecution, unless the right is expressly conferred by a constitutional
provision or by statute. Arizona v. Manypenny, 451 U.S. 232, 246, 101
S. Ct. 1657, 68 L. Ed. 2d 58 (1981); United States v. Sanges, 144 U.S. 310,
312, 12 S. Ct. 609, 36 L. Ed. 445 (1892); State v. Reynolds, 5 Tenn. (4
Hayw.) 110, 110 (1817). A general grant of appellate jurisdiction does not
satisfy this requirement. United States v. Sanges, 144 U.S. at 322–23, 12
S. Ct. 609; State v. Reynolds, 5 Tenn. (4 Hayw.) at 110–11. When a statute
affords a state or the United States the right to an appeal in a criminal
proceeding, the statute will be strictly construed to apply only to the
circumstances defined in the statute. Carroll v. United States, 354 U.S.
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394, 400, 77 S. Ct. 1332, 1 L. Ed. 2d 1442 (1957); State v. Adler, 92 S.W.3d
397, 400 (Tenn. 2002).
State v. Meeks, 262 S.W.3d 710, 718 (Tenn. 2008).
Following the trial court’s revocation order, the State filed a notice of appeal. The
Court of Criminal Appeals determined that appellate jurisdiction was proper using the
“extremely limited avenue of relief” of a common law writ of certiorari. Tolle, 2018 WL
1661616, at *6 (internal quotation marks omitted) (citing State v. Lane, 254 S.W.3d 349,
355 (Tenn. 2008)) (“[A] common-law writ of certiorari is appropriate to correct (1)
fundamentally illegal rulings; (2) proceedings inconsistent with essential legal
requirements; (3) proceedings that effectively deny a party his or her day in court; (4)
decisions beyond the lower tribunal’s authority; and (5) plain and palpable abuses of
discretion.”).
Our review of the record, however, leads us to conclude that appellate jurisdiction
was proper pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. Rule 35
provides, in relevant part:
(a) Timing of Motion. The trial court may reduce a sentence upon motion
filed within 120 days after the date the sentence is imposed or probation is
revoked. . . .
(b) Limits of Sentence Modification. The court may reduce a sentence
only to one the court could have originally imposed.
....
(d) Appeal. . . . . If the court modifies the sentence, the state may appeal as
otherwise provided by law.
Tenn. R. Crim. P. 35.
The Court of Criminal Appeals declined to cite Rule 35 as the basis of appellate
jurisdiction “because the record does not clearly establish that the trial court was acting
under the color of authority granted by Rule 35.” Tolle, 2018 WL 1661616, at *5. We
disagree.
Following his transfer to Knox County to answer for his 2013 probation violation,
the defendant filed a written motion titled “Motion to Dismiss Due to Violation of the
Right to a Speedy Trial or in the Alternative to be Sentenced Consistent with Current
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Law and with Credit for Time Served in South Carolina.” Although the written motion
contained no mention of Tennessee Rule of Appellate Procedure 35, the defendant argued
therein for a reduction of his sentence. He then argued during his revocation hearing that
Rule 35 granted the trial court authority to reduce his sentence and mentioned the rule by
name. The basis of the defendant’s motion before the trial court was, at least in part,
Tennessee Rule of Criminal Procedure 35, and despite the trial court’s failure to
expressly state the basis for its ruling, it can be inferred that the court was operating
under Rule 35 when it reduced the defendant’s sentence. Consequently, it was not
necessary for the Court of Criminal Appeals to resort to the common-law writ of
certiorari to establish appellate jurisdiction because Rule 35 expressly provides for a State
appeal when the trial court modifies the sentence thereunder. Tenn. R. Crim. P. 35(d).
B. Applicability of Amended Theft Grading Statute
Next, we turn to the issue of whether the amendments to Tennessee Code
Annotated section 39-14-105 may be applied following the revocation of probation. We
reiterate that our review of this question of statutory construction is de novo with no
presumption of correctness. State v. Howard, 504 S.W.3d 260, 267 (Tenn. 2016).
At the time the defendant committed the offense at issue in the case before us,
theft of property valued at more than $500 but less than $1,000 constituted a Class E
felony. Tenn. Code Ann. § 39-14-105(a)(2) (2014). However, Tennessee Code
Annotated section 39-14-105, which we refer to as the theft grading statute, was amended
by the Public Safety Act of 2016. So, after January 1, 2017,2 theft of the same amount
instead constituted a Class A misdemeanor. Tenn. Code Ann. § 39-14-105(a)(1) (2017);
2016 Tenn. Pub. Acts, ch. 906, sec. 5.
As a general rule, “a criminal offender must be sentenced pursuant to the statute in
effect at the time of the offense.” State v. Smith, 893 S.W.2d 908, 919 (Tenn. 1994)
(citing State v. Reed, 689 S.W.2d 190, 196 (Tenn. Crim. App. 1984); 24 C.J.S. Criminal
Law § 1462 (1989)). Even so, our legislature has enacted a Criminal Savings
Statute, which requires courts to apply a subsequent statute to a defendant’s sentencing if
the subsequent statute “provides for a lesser penalty.” Tenn. Code Ann. § 39-11-112. In
this Court’s opinion in Menke, issued concurrently with this opinion, we concluded that
2
Pursuant to section 17 of the Public Safety Act, the amendments to the theft grading statute
became effective on January 1, 2017. 2016 Tenn. Pub. Acts, ch. 906, sec. 17.
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the “lesser penalty” language of the Criminal Savings Statute was satisfied and that the
amended version of the theft grading statute was applicable even where the offense
occurred before the amendment’s effective date. State v. Menke, No. M2017-00597-SC-
R11-CD, __ S.W.3d __, __ (Tenn. 2019).
Even so, we conclude that the amended version of the theft grading statute cannot
apply in the case before us. As discussed above, the trial court was operating under Rule
35 of the Tennessee Rules of Criminal Procedure when it modified the offense class and
sentence following the revocation of the defendant’s probation. “The standard of review
in an appeal from a trial court’s decision on a Rule 35 motion is whether the trial court
abused its discretion.” State v. Patterson, 564 S.W.3d 423, 429 (Tenn. 2018) (citing
State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993)). “A trial court abuses its
discretion when it applies an incorrect legal standard, reaches a conclusion that is not
logical, bases its decision on a clearly erroneous assessment of the evidence, or uses
reasoning that causes an injustice to the complaining party.” State v. Davidson, 509
S.W.3d 156, 193 (Tenn. 2016) (citing State v. Davis, 466 S.W.3d 49, 61 (Tenn. 2015));
see also State v. Smith, 492 S.W.3d 224, 243 (Tenn. 2016).
Ordinarily, upon finding a violation of the terms of probation, the trial court has
discretion to order the defendant to: (1) serve his sentence in incarceration; (2) serve the
probationary term, beginning anew; or (3) serve a probationary period that is extended for
up to an additional two years. Tenn. Code Ann. §§ 40-35-308(c), -310(a), -311(e); State
v. Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999). However, when a motion is properly
filed pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure, the trial court
also has authority to reduce the defendant’s sentence to one that the court could have
originally imposed. Tenn. R. Crim. P. 35(b).
Under the plain language of the rule, the court was limited to reducing the
defendant’s sentence “only to one the court could have originally imposed.” Tenn. R.
Crim. P. 35(b). The rule does not permit the trial court to alter the offense class, and at
the time of the defendant’s original sentencing in 2012, eleven months, twenty-nine days
was not an authorized sentence for a Class E felony, to which he pleaded guilty.3 See
Tenn. Code Ann. § 40-35-111(b)(5).
3
The defendant points out that, under Tennessee Code Annotated section 40-35-211, the
sentencing court had discretion to sentence him to the local jail or workhouse for a period of less than one
year because he was a Range I offender. See Tenn. Code Ann. §§ 40-35-211(2), -112(a)(5). Section 40-
35-211 gives the trial court such discretion if the minimum punishment for any offense is imprisonment
for one year and where “in the opinion of the court the offense merits a lesser punishment.” Id. § 40-35-
211(2). However, there was no such finding here—neither during the original sentencing nor during the
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We also conclude that the Criminal Savings Statute does not operate to “save” the
defendant under these circumstances. Again, the Criminal Savings Statute provides that
“in the event the subsequent act provides for a lesser penalty, any punishment imposed
shall be in accordance with the subsequent act.” Tenn. Code Ann. § 39-11-112.
Although we have concluded that the Criminal Savings Statute is generally applicable to
the amended theft grading statute, here, the defendant’s punishment was imposed in
August 2012 when he pleaded guilty to his crimes under the pre-2017 version of the theft
grading statute. We agree with the Court of Criminal Appeals that “[w]hen the trial court
revokes a defendant’s probation, any action it takes thereafter relates back to the sentence
previously imposed.” Tolle, 2018 WL 1661616, at *11.
We, therefore, conclude that the trial court abused its discretion in modifying the
offense class and sentence pursuant to the amended version of the theft grading statute
following the revocation of his probation. Accordingly, we affirm the decision of the
Court of Criminal Appeals to vacate the sentence imposed by the trial court and remand
to the trial court for further proceedings consistent with this opinion.
IV. CONCLUSION
For the foregoing reasons, we conclude that appellate jurisdiction was proper in
this case, and we further conclude that the trial court erred in modifying the offense class
and sentence pursuant to the amended version of the theft grading statute, Tennessee
Code Annotated section 39-14-105. Therefore, we affirm the judgment of the Court of
Criminal Appeals and remand to the trial court for the entry of a modified judgment
consistent with this opinion. It appearing that the defendant, Michael Eugene Tolle, is
indigent costs of this appeal are taxed to the State of Tennessee.
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ROGER A. PAGE, JUSTICE
revocation proceedings. In revoking the defendant’s probation, the trial court simply decided to honor the
“contemporary wishes” of the legislature.
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