State of Tennessee v. Sherry Anastasia Dodson ( 2018 )

11/26/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 25, 2018
STATE OF TENNESSEE v. SHERRY ANASTASIA DODSON
Appeal from the Criminal Court for Knox County
No. 109066 Bob McGee, Judge
No. E2017-02480-CCA-WR-CO
On petition for writ of certiorari from the Knox County Criminal Court, the State
challenges the order of that court denying its petition to have the appellee, Sherry
Anastasia Dodson, declared a Motor Vehicle Habitual Offender (“MVHO”). The trial
court erred by concluding that the State was required to proceed via Code section 55-10-
618 to have the appellee declared an MVHO in this case and that the State had waived
the right to proceed at all by failing to follow the requirements of that section.
Accordingly, the judgment of the trial court denying the State’s petition to have the
appellee declared an MVHO is reversed, and the case is remanded for proceedings on the
merit of the State’s petition.
Tenn. Code Ann. § 27-8-101; Judgment of the Criminal Court Reversed and
Remanded
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Greg Eshbaugh,
Assistant District Attorney General, for the appellant, State of Tennessee.
Douglas A. Trant and Julia Anna Trant (on appeal), and James Owen (at hearing),
Knoxville, Tennessee, for the appellee, Sherry Anastasia Dodson.
OPINION
By petition filed on October 4, 2016, the State moved the trial court to
declare the appellee an habitual offender under the terms of the Motor Vehicle Habitual
Offenders Act (“the Act”). The petition listed three previous convictions: a September
2016 conviction of driving under the influence (“DUI”) with an offense date of June 6,
2016; a September 2016 conviction of DUI with an offense date of March 26, 2016; and
a September 2013 conviction of reckless driving with an offense date of October 23,
2012. The petition did not address the application of any particular statute and, instead,
cited generally to the Act.
In May 2017, the appellee moved the court to dismiss the petition, arguing
that the State had failed to comply with Code section 55-10-618 by failing to advise the
appellee within 10 days of her September 19, 2016 guilty pleas that the State intended to
have the appellee declared an MVHO. According to her motion, following her pleas, the
appellee had applied for and obtained a restricted license, without objection by the State,
and had complied with the requirement that she use an ignition interlock device on her
vehicle. The appellee argued that the State was required to follow the procedure in Code
section 55-10-618 “when the State knows that they’re dealing with the third triggering
offense.” She asserted that, because all of the triggering offenses occurred in Knox
County, the State was aware at the time she pleaded guilty that “this was going to be the
third triggering offense” and that, as a result, they were bound to follow the mandates of
Code section 55-10-618, including the notice requirement.
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At the December 2017 hearing on the petition, the State asserted that,
following the appellee’s September 2016 guilty pleas to two counts of DUI, it had
received a request from the Department of Safety to have the appellee declared an
MVHO. The State, citing Code section 55-10-606(a), argued that “the State was
mandated by statute to . . . file the petition” in this case. Citing Code section 55-10-
606(b), the State claimed, “alternatively, that the DA may file a petition upon information
from another source.” Finally, the State asserted that Code section 55-10-618 was simply
another provision that permitted the State to seek an MVHO declaration “as part of the
criminal case, as opposed to a separate civil petition.”
The trial court found that the Code appeared to provide “two approaches”
that the State could follow when seeking an MVHO declaration. The first, designated by
the trial court as “a very general approach that covers anybody,” flows from a request by
the Department of Safety “simply based on the Department of Safety’s knowledge of a
person’s record and their duty to send notice of that to the State.” The court determined
that “[t]he second procedure is much more specific and applies only to people who are in
the process of being prosecuted for a DUI or some offense” that would trigger the
MVHO statute. The court held that, although both statutes could be applied to the
appellee’s case, under the rules of statutory construction, the more specific statute should
be applied. The court observed that the State was aware at the time the appellee entered
her guilty pleas that she had the requisite number of qualifying convictions and found that
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“when the State failed to make that a part of the prosecution, the State waived their
opportunity to proceed along those lines.” The court also indicated that the State’s failure
to proceed with the MVHO declaration as part of its criminal prosecution might implicate
principles of due process similar to those impacted by the State’s saving back charges.
Finally, the court observed that “the proper way to do this was to make this a part of the
criminal prosecution and give Ms. Dodson notice of what all was going to happen to her
as a result of her violations of the law.”
Following the trial court’s ruling, the State, cognizant of the fact that it
possessed no appeal as of right from the trial court’s order, petitioned this court for a writ
of certiorari to review the trial court’s order. This court granted the State’s request, and
before this court is the propriety of the trial court’s order denying the State’s petition to
have the appellee declared an MVHO.
Our review of the trial court’s order in this case is de novo, with no
presumption of correctness afforded to the ruling of the trial court. See State v.
Henderson, 531 S.W.3d 687, 692 (Tenn. 2017) (“Issues of statutory construction present
questions of law which we review de novo, with no presumption of correctness.”).
As is applicable in this case, an MVHO is “any person who, during a five-
year period, is convicted in a Tennessee court or courts of three (3) or more” qualifying
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offenses, including DUI and reckless driving. T.C.A. § 55-10-603(2)(A)(viii), (xi). Code
section 55-10-605 imposes upon the Department of Safety a duty to transmit records of
conviction “to the district attorney general for the judicial district wherein the individual
resides or may be found” when those records “show that an individual has accumulated
convictions appearing to warrant proceedings under this part.” Id. § 55-10-605(b).
“Upon receipt of the record referenced in § 55-10-605, it is the duty of the district
attorney general forthwith to file a petition against the individual in the court of general
criminal jurisdiction for the county in which the individual resides, or may be found.” Id.
§ 55-10-606(a).
The State followed the above procedure in this case. Upon receipt of notice
from the Department of Safety that the appellee had the requisite number of qualifying
convictions, the State filed the petition that is the subject of this appeal. The appellee
argues, however, that the State was bound to follow the procedure in Code section 55-10-
618 or forfeit the opportunity to have the appellee declared an MVHO.
Code section 55-10-618 provides:
(a) As an alternative to the procedure set out in §§ 55-10-601-
-55-10-617 for declaring a person to be a motor vehicle
habitual offender, the district attorney general may use the
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procedure set out in this section; provided, that at least one
(1) of the convictions required by § 55-10-603 of this part
occurs on or after July 1, 1995.
(b) If the district attorney general believes that a defendant
should be sentenced as a motor vehicle habitual offender in
addition to the sentence for the habitual offender triggering
offense, the district attorney general shall file a statement
thereof with the court and defense counsel not less than ten
(10) days before trial or acceptance of a guilty plea; provided,
that notice may be waived by the defendant in writing with
the consent of the district attorney general and the court
accepting the plea. This statement, which shall not be made
known to the jury determining the guilt or innocence of the
defendant on the primary offense, must set forth the nature of
the prior applicable convictions, the dates of the convictions
and the identity of the courts of the convictions. The original
or certified copy of the court record of any prior conviction,
bearing the same name as that by which the defendant is
charged in the primary offense, is prima facie evidence that
the defendant named therein is the same as the defendant
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before the court, and is prima facie evidence of the facts set
out therein.
Id. § 55-10-618(a)-(b).
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.” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678
(Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “Legislative
intent is determined ‘from the natural and ordinary meaning of the statutory language
within the context of the entire statute without any forced or subtle construction that
would extend or limit the statute’s meaning.’” Osborn v. Marr, 127 S.W.3d 737, 740
(Tenn. 2004) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). “When the
statutory language is clear and unambiguous, we apply the plain language in its normal
and accepted use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State
v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous
that we may reference the broader statutory scheme, the history of the legislation, or other
sources.” In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn.
Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)).
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This court has determined that the Act is not ambiguous. See State v.
William Christopher Davis, No. E2016-02132-CCA-R3-CD, slip op. at 6 (Tenn. Crim.
App., Knoxville, Aug. 24, 2017) (“We also disagree that the act is ambiguous.”). The
language of Code section 55-10-606 unequivocally imposes upon the State a duty to act
upon receiving notice from the Department of Safety that an individual has the requisite
number of convictions to qualify as an MVHO. See T.C.A. § 55-10-606(a); see also
State v. Gipson, 940 S.W.2d 73, 74-75 (Tenn. Crim. App. 1996). The plain language of
Code section 55-10-618 provides that it is simply “an alternative to the procedure set out
in §§ 55-10-601--55-10-617” that the district attorney “may use” so long as other
requirements are met. See T.C.A. § 55-10-618(a); see also State v. William Tony Wright,
No. M2001-01418-CCA-R3-CD (Tenn. Crim. App., Nashville, June 19, 2002); State v.
Sammy L. Golden, No. 02C01-9611-CR-00393 (Tenn. Crim. App., Jackson, Sept. 10,
1997). Nothing in either statute supports the trial court’s conclusion that the State must
follow the provisions of Code section 55-10-618 in all cases when a conviction of the
charged offense would constitute a triggering offense under the Act. The use of the word
“may” in Code section 55-10-618(a) indicates that the choice to make the MVHO
petition part of the criminal proceeding lies solely within the discretion of the district
attorney general. See, e.g., Holdredge v. City of Cleveland, 402 S.W.2d 709, 713 (Tenn.
1966) (“[T]he word ‘may’ is permissive, and operates to confer a discretion.”) (citation
omitted)). We are unwilling to impose a mandatory duty when the legislature has not.
The use of the word “shall” in Code section 55-10-618 does not operate to alter the
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discretionary language in subsection (a) but instead merely indicates that, when the State
elects to make the MVHO petition part of the criminal proceeding, it must follow the
procedure outlined in subsection (b).
The appellee urges that this interpretation “is in conflict with the intent of
the legislature, repugnant to the principle for fairness, and prejudicial to [the appellee’s]
rights.” We reiterate that the language of the Act is plain and unambiguous. “When the
statutory language is clear and unambiguous,” this court must “apply the plain language
in its normal and accepted use,” Boarman, 109 S.W.3d at 291, rather than defer to “the
broader statutory scheme, the history of the legislation, or other sources,” In re Estate of
Davis, 308 S.W.3d at 837.
The appellee also claims that permitting the State to proceed other than via
Code section 55-10-618 in this case violates Tennessee Rule of Criminal Procedure 8(a)
regarding mandatory joinder of offenses. The rules of criminal procedure, however, do
not apply to proceedings under the Act because, as the courts of this state have repeatedly
recognized, “the proceedings to revoke or suspend driving privileges are civil in nature
and not criminal.” Everhart v. State, 563 S.W.2d 795, 797 (Tenn. Crim. App. 1978).1 To
1
In support of her argument, the appellee points out that proceedings under the Act occur in a court
with criminal jurisdiction, that the Act provides for a trial by jury, that the State bears the burden of proof,
and that an appeal from the decision of the trial court lies with this court. These arguments were
considered and rejected by this court in Everhart. Everhart, 563 S.W.2d at 796 (“In support of his
contention that proceedings under the Motor Vehicle Habitual Offenders Act are criminal in nature rather
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the extent that the appellee invokes principles of constitutional due process as a bar to the
proceedings in this case, this court has observed that “any complaint about the
constitutional validity of the predicate convictions or of the MVHO process must fail. . . .
given the civil nature of the proceeding.” State v. Sneed, 8 S.W.3d 299, 301 (Tenn. Crim.
App. 1999).
Accordingly, the judgment of the trial court denying the State’s petition is
reversed, and the case is remanded for further proceedings on the merit of the State’s
petition.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
than civil, the defendant argues that since the Act expressly bestows trial jurisdiction upon the criminal
courts and appellate jurisdiction upon this court, this evinces a legislative intent that proceedings under
the act are criminal in nature. We do not agree. The criminal courts and this court already had
jurisdiction of criminal cases. The effect of these provisions in the Motor Vehicle Habitual Offenders Act
was to bestow upon the criminal courts and this court additional civil jurisdiction that these courts would
not have otherwise enjoyed.”).
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