State v. Jonathan Askew ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1997 SESSION FILED
August 5, 1997
) Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9607-CR-00228
Appellee, )
) Shelby County
V. )
) Honorable Arthur T. Bennett, Judge
JONATHAN ASKEW, )
) (Sentencing)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Gerald Green Charles W. Burson
Attorney at Law Attorney General & Reporter
301 Washington, Suite 302
Memphis, TN 38103 Deborah A. Tullis
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
Perry Hayes
Assistant District Attorney General
Criminal Justice Complex
201 Poplar, Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
REVERSED AND REMANDED
PAUL G. SUMMERS,
Judge
OPINION
As part of a negotiated plea agreement, the appellant, Jonathan Askew,
pled guilty to driving while under the influence and to driving while his license was
revoked, canceled, or suspended. This was the appellant’s second conviction for
driving while under the influence, which is a violation of Tenn. Code Ann. § 55-10-
401 (1993). Although the trial court found the appellant eligible for the work
release program, it denied his application to the program because his employer,
the State of Tennessee, refused to send his paycheck directly to the Shelby
County Correctional Center Work Release Program. We respectfully reverse the
judgment of the trial court and remand for reconsideration of the application.
The appellant argues that Tenn. Code Ann. § 41-2-128(c)(1)(C) (Supp.
1994) requires only that “[t]he defendant agree[] to defray, to the best of the
defendant’s ability, the cost of incarceration and treatment,” not that the
appellant’s payroll check be sent directly to the work release office. He, therefore,
contends that the employer agreement required for the work release program is
more stringent than the statute itself. He further argues that Tenn. Code Ann. §
41-2-129 (Supp. 1994) provides that even the warden can deposit a defendant’s
funds or a defendant can turn his or her wages over to the warden once they are
received.
The state agrees with the appellant in this case. The state maintains that
the trial court may order the appellant to pay a certain amount to defray the cost of
his incarceration, but that the trial court may not deny his application for the work
release program “solely because his employer refuses to mail his paycheck to that
office.”
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The appellant’s second offense for driving under the influence occurred
on August 19, 1994. Although not noted in either brief, our Supreme Court on
June 20, 1994 declared the entire work release statute of Tenn. Code Ann.
§ 41-2-128(c) unconstitutional in State v. Tester, 879 S.W.2d 823 (Tenn. 1994).
Therefore, at the time the appellant committed the offense, this statute had been
rendered unconstitutional because it violated equal protection of the laws
guaranteed by the Fourteenth Amendment to the United States Constitution and
guaranteed by Article I, Section 8 and Article XI, Section 8 of the Tennessee
Constitution. Under the 1994 version of Tenn. Code Ann. § 41-2-128(c),
subsection (9) allowed only three Tennessee counties to grant work release to
persons convicted of a second violation of driving under the influence: Shelby,
Davidson, and Moore. 1
In 1995, the legislature amended Tenn. Code Ann. § 41-2-128(c) to
remove subsection (9); and the amended statute became effective on May 9,
1995. The amended statute contained the same language in subsection
(c)(1)(C) as the unconstitutional statute. The appellant in this case, who was
sentenced in Shelby County, negotiated a plea agreement on September 11,
1995; and the trial court approved that agreement on October 13, 1995.
Therefore, Tenn. Code Ann. § 41-2-128(c) was applicable to the appellant when
it was unconstitutional because he was convicted in Shelby County, which was
one of the three counties in which the statute applied; and the amended statute
was applicable to the appellant as well.
1
The original version of this statute contained a population requirement which made work
release mandatory in some counties and discretionary in others:
[C]ounties having a population of 600,000 or more according to the 1960 Federal
Census or any subsequent Federal Census shall permit certain prisoners to leave
the workhouse during reasonable and necessary hours for occupational, scholastic
or medical purposes as provided in this Act. All other counties of this state are
authorized to permit certain prisoners to leave the workhouse during reasonable and
necessary hours for occupational, scholastic or medical purposes as provided in this
Act.
1967 Tenn. Pub. Acts 259.
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Consequently, we conclude that the trial court erred in denying the
appellant’s application to the work release program because his employer
refused to send his paycheck directly to the Shelby County Correctional Center
Work Release Program. Therefore, we respectfully reverse the judgment of the
trial court. Consistent with this opinion, the trial court will conduct a hearing to
reconsider the appellant’s work release application.
______________________________
PAUL G. SUMMERS, Judge
CONCUR:
______________________________
DAVID H. WELLES, Judge
______________________________
JOE G. RILEY, Judge
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