State v. Robert Sission ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
May 8, 2002 Session
STATE OF TENNESSEE v. ROBERT A. SISSON
Direct Appeal from the Criminal Court for Shelby County
No. 00-07640 Carolyn Wade Blackett, Judge
No. W2001-01666-CCA-R3-CD - Filed March 4, 2003
The appellant, Robert A. Sisson, pleaded guilty to third offense driving under the influence
of an intoxicant and was sentenced to eleven months and twenty-nine days with actual incarceration
for 120 days followed by probation. The appellant, pursuant to Tennessee Rule of Appellate
Procedure 37(b)(2)(i), reserved a certified question of law for appeal to this court. That question is
whether the 1998 amendments to Tennessee Code Annotated section 55-10-403(a)(1) regarding
penalties for D.U.I. convictions violate the ex-post facto and/or due process clauses of the federal
and state constitutions. Those amendments increase from ten to twenty years the age of prior D.U.I.
convictions that may be used to enhance D.U.I. penalties. Because we find that the defendant
committed the instant offense after the effective date of the amendments in question, we find no ex-
post facto or due process violations occurred in this case. The judgment of conviction is therefore
affirmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.
JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E.
GLENN, JJ., joined.
Joseph S. Ozment, Memphis, Tennessee, for appellant, Robert A. Sisson.
Paul G. Summers, Attorney General & Reporter; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and James Powell, Assistant District Attorney
General, for appellee, State of Tennessee.
OPINION
On August 22, 1999, the appellant committed the D.U.I. offense that is the subject of this
appeal. At the time of the commission of the offense the appellant had two separate D.U.I.
convictions based on guilty pleas entered in court on December 7, 1987, and February 28, 1996. On
July 9, 2001, the appellant pleaded guilty to D.U.I. third offense and, as noted earlier, reserved a
certified question of law, to wit:
Whether the provisions of T.C.A. 55-10-403 [sic] as applied to the
defendant’s prior convictions on February 28, 1996 and December 7,
1987, operate as a violation of due process and/or an ex post facto
law in elevating or enhancing the current offense, committed on
August 22, 1999, to a third offense DUI, particularly where the law
under which the Defendant was previously convicted provided
convictions for enhancement purposes up to ten (10) years as opposed
to a maximum of twenty (20) and/or whether the current offense
should be treated as a third offense.
Prior to entry of his guilty plea on July 9, 2001, the appellant had filed a motion to dismiss
that portion of the indictment elevating this offense to a third offense. The motion was based on the
grounds noted above. At the hearing on the motion to dismiss the appellant testified that when he
pleaded guilty to D.U.I. in 1987 and 1996 he was advised by both his attorneys and the trial judges
that those convictions could only be used for ten (10) years to enhance any subsequent D.U.I.
conviction. He also testified that he probably would not have entered guilty pleas in 1997 and 1999
had he known the law might change to permit the use for sentence enhancement of those convictions
for twenty (20) years. The trial court denied the appellant’s motion.
DISCUSSION
Offenders who commit multiple D.U.I. offenses are subject to having their sentences
enhanced. Tenn. Code Ann. § 55-10-403(a)(1) (1997 & Supp. 2001). Under the present version of
the code, in order to enhance the defendant’s sentence as a multiple offender, the previous D.U.I.
offense must have occurred within ten years of the present violation. Tenn. Code Ann. § 55-10-
403(a)(3) (1997 & Supp. 2001). If the defendant’s record satisfies this condition, then “every
conviction for a violation of § 55-10-401, within ten (10) years of the immediately preceding
violation shall be considered in determining the number or prior offenses.” Tenn. Code Ann. § 55-
10-403(a)(3) (1997 & Supp. 2001). The present version of the code specifically forbids the usage
of “a conviction occurring more than twenty (20) years from the date of the instant conviction” for
enhancement purposes. Tenn. Code Ann. § 55-10-403(a)(3) (1997 & Supp. 2001). Whereas under
the present statute, the defendant’s prior D.U.I. convictions could be considered within twenty years
if some conditions were satisfied, pursuant to the 1987 version, under no condition may convictions
occurring after ten years be considered. Compare Tenn. Code Ann. § 55-10-403(a)(3) (1997 & Supp.
2001) with Tenn. Code Ann. § 55-10-403(a)(3) (1987).
Although the defendant claims that the amendments to Section 55-10-403(a)(3) violate his
due process rights to fair notice and the ex post facto provisions of the federal and state constitutions,
it appears that this Court has repeatedly rejected such claims. State v. Janice Carol Biskner, No.
E2000-01440-CCA-R3-CD, 2001 WL 1408510 (Tenn. Crim. App. at Knoxville, Nov. 13, 2001);
State v. Clever, 70 S.W.3d 771, 776 (Tenn. Crim. App. 2001). Moreover, it is well established that
statutes such as the one at issue here merely enhance the sentence for the triggering offense rather
than punish the prior offenses and therefore do not violate constitutional provisions concerning due
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process or ex post facto laws. State v. Johnson, 970 S.W.2d 500, 505 (Tenn. Crim. App. 1996);
State v. Williams, 675 S.W.2d 499, 502 (Tenn. Crim. App. 1984).
The conviction rendering the defendant subject to third offender D.U.I. sentencing was
entered on July 9, 2001. The defendant makes no claim that the advice he received from both
counsel and the courts at the time he entered his prior guilty pleas was inaccurate at the time. These
prior convictions cannot act “to freeze the law. . . voiding subsequent legislation regarding future
crimes.” Janice Carol Biskner, 2001 WL 1408510, at *8.
The judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
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