Anthony Perry v. Tennessee Department of Corrections

12/06/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 3, 2022
ANTHONY PERRY v. TENNESSEE DEPARTMENT OF CORRECTIONS
Appeal from the Chancery Court for Davidson County
No. 20-1063-III Ellen Hobbs Lyle, Chancellor
___________________________________
No. M2022-00108-COA-R3-CV
___________________________________
An inmate convicted of first-degree murder in 1999 filed this declaratory judgment action
challenging the Tennessee Department of Correction’s calculation of his release eligibility
date. The trial court granted the Tennessee Department of Correction’s motion for
summary judgment dismissing the petition. Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right: Judgment of the Chancery Court Affirmed
and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which THOMAS R.
FRIERSON, II, and JEFFREY USMAN, JJ., joined.
Anthony Perry, Henning, Tennessee, Pro se.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor
General; Dean S. Atyia, Assistant Attorney General, for the appellee, Tennessee
Department of Corrections.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it
shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not
be cited or relied on for any reason in any unrelated case.
I. FACTUAL AND PROCEDURAL BACKGROUND
In April 1999, a jury convicted Petitioner/Appellant Anthony Perry (“Appellant”)
of first-degree murder for an offense committed August 12, 1995.2 According to Appellant,
the State of Tennessee sought the death penalty, but the jury chose instead to impose life
imprisonment. Pursuant to Tennessee Code Annotated section 40-35-501(i)(1),
Respondent/Appellee the Tennessee Department of Correction (“TDOC”) calculated
Appellant’s sentence to require a minimum of fifty-one years imprisonment. Appellant first
requested that TDOC issue a declaratory order altering this calculation, which TDOC
denied.
On October 19, 2020, Appellant filed the petition for declaratory judgment that is
subject to this appeal in Davidson County Chancery Court (“the trial court”). Therein,
Appellant argued that TDOC miscalculated his release eligibility date under section 40-35-
501(i)(1) because this section was inapplicable to a sentence imposed by a jury.
Eventually, on April 30, 2021, TDOC filed a motion for summary judgment,
arguing that Appellant was not entitled to a declaratory judgment because his sentence was
correctly calculated under section 40-35-501(i)(1). In support, TDOC filed a statement of
undisputed material facts setting forth the following:
1. [Appellant] was convicted of first degree murder on April 12, 1999, and
sentenced to a life sentence in Shelby County Case No. 96063 87.
2. [Appellant] was issued 1,263 days of pretrial jail credits and 39 days of
time served on the sentencing order.
3. [Appellant] has earned 2,957 days of sentence reduction credits, but only
retained 2,951 of those days because his sentence cannot be reduced below
51 years.
(Record citations omitted). Appellant later responded that these facts were undisputed.
Appellant disagreed, however, that TDOC was entitled to summary judgment.
On September 8, 2021, the trial court entered a memorandum and order granting
TDOC’s motion for summary judgment. Therein, the trial court concluded that TDOC
correctly calculated Appellant’s release eligibility date under section 40-35-501(i)(1)
because while the sentence may be chosen by the jury, it is ultimately “imposed” by the
court. Although Appellant filed a motion to alter or amend,3 the trial court denied that
2
Appellant was also convicted of especially aggravated kidnapping and conspiracy to commit
felony murder. The conspiracy charge was reversed on appeal, but the murder and kidnapping convictions
were affirmed. See generally State v. Perry, No. W1999-01370-CCA-R3-CD, 2001 WL 792627 (Tenn.
Crim. App. July 13, 2001).
3
Appellant’s motion was filed on October 12, 2021, which is in excess of thirty days following the
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motion by order of January 4, 2022. Appellant thereafter appealed to this Court.4
II. ISSUE PRESENTED
As we perceive it, Appellant raises a single issue in this appeal: whether the trial
court erred in granting TDOC’s motion for summary judgment related to the calculation of
his sentence.
III. STANDARD OF REVIEW
A party is entitled to summary judgment only if the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits . . . show that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. This case focuses on the construction and
interpretation of statutes, which is an issue of law. Lavin v. Jordon, 16 S.W.3d 362, 364
(Tenn. 2000). Issues of law are amenable to resolution by summary judgment. Est. of
Brown, 402 S.W.3d 193, 197 (Tenn. 2013) (“Summary judgments are appropriate in
virtually any civil case that can be resolved solely on issues of law.” (citing Hughes v. New
Life Dev. Corp., 387 S.W.3d 453, 471 (Tenn. 2012))).
This Court reviews the trial court’s ruling on a motion for summary judgment de
novo with no presumption of correctness, as the resolution of the motion is a matter of law.
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (citing Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Abshure v. Methodist Healthcare–Memphis
Hosp., 325 S.W.3d 98, 103 (Tenn. 2010)). We view the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Godfrey
v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002).
IV. DISCUSSION
As an initial matter, we note that Appellant is proceeding pro se in this appeal, as
he did in the trial court. As such, we keep the following principles in mind in this appeal:
trial court’s judgment. See Tenn. R. Civ. P. 59.04 (“A motion to alter or amend a judgment shall be filed
and served within thirty (30) days after the entry of the judgment.”). The certificate of service on the motion,
however, indicates that it was mailed on October 5, 2021. Under the prison mailbox rule, we consider this
to be timely. See Tenn. R. Civ. P. 5.06 (“ If papers required or permitted to be filed pursuant to the rules of
civil procedure are prepared by or on behalf of a pro se litigant incarcerated in a correctional facility and
are not received by the clerk of the court until after the time fixed for filing, filing shall be timely if the
papers were delivered to the appropriate individual at the correctional facility within the time fixed for
filing.”).
4
During the pendency of this appeal, Appellant filed two requests for this Court to take judicial
notice of certain authorities he asserted supported his position. This Court granted both motions only to the
extent that it would consider the authorities properly cited in Appellant’s briefs to this Court.
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Parties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro se
litigants have no legal training and little familiarity with the judicial system.
However, the courts must also be mindful of the boundary between fairness
to a pro se litigant and unfairness to the pro se litigant’s adversary. Thus, the
courts must not excuse pro se litigants from complying with the same
substantive and procedural rules that represented parties are expected to
observe.
The courts give pro se litigants who are untrained in the law a certain
amount of leeway in drafting their pleadings and briefs. Accordingly, we
measure the papers prepared by pro se litigants using standards that are less
stringent than those applied to papers prepared by lawyers.
Pro se litigants should not be permitted to shift the burden of the
litigation to the courts or to their adversaries. They are, however, entitled to
at least the same liberality of construction of their pleadings that Tenn. R.
Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the courts
cannot create claims or defenses for pro se litigants where none exist, they
should give effect to the substance, rather than the form or terminology, of a
pro se litigant’s papers.
Hessmer v. Hessmer, 138 S.W.3d 901, 903–04 (Tenn. Ct. App. 2003) (citation omitted).
Much of Appellant’s argument on appeal surrounds the construction and application
of statutes. We therefore apply the following “familiar rules of statutory construction”:
Our role is to determine legislative intent and to effectuate legislative
purpose. The text of the statute is of primary importance, and the words must
be given their natural and ordinary meaning in the context in which they
appear and in light of the statute’s general purpose. When the language of
the statute is clear and unambiguous, courts look no farther to ascertain its
meaning. When necessary to resolve a statutory ambiguity or conflict, courts
may consider matters beyond the statutory text, including public policy,
historical facts relevant to the enactment of the statute, the background and
purpose of the statute, and the entire statutory scheme. However, these non-
codified external sources “cannot provide a basis for departing from clear
codified statutory provisions.”
Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012) (citations omitted).
The crux of this appeal involves Tennessee Code Annotated section 40-35-501.
Essentially, Appellant contends that his release eligibility date should be calculated under
section 40-35-501(h)(1), while TDOC contends that Appellant’s release eligibility should
be calculated under section 40-35-501(i). As we must, we begin the language of the statute.
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At the time of Appellant’s offense, section 40-35-501(h)(1) provided as follows:
Release eligibility for each defendant receiving a sentence of imprisonment
for life for first degree murder shall occur after service of sixty percent (60%)
of sixty (60) years less sentence credits earned and retained by the defendant,
but in no event shall a defendant sentenced to imprisonment for life be
eligible for parole until the defendant has served a minimum of twenty-five
(25) full calendar years of the sentence[.] . . . A defendant receiving a
sentence of imprisonment for life for first degree murder shall be entitled to
earn and retain sentence credits, but the credits shall not operate to make the
defendant eligible for release prior to the service of twenty-five (25) full
calendar years.
Tenn. Code Ann. § 40-35-501(h)(1) (Supp. 1995). Under this subsection, Appellant asserts
that he became entitled to release in 2020, having served the minimum twenty-five years
in prison.
TDOC contends that Appellant’s release eligibility date is not calculated under
subsection(h)(1), but under the later-enacted subsection (i)(1). That subsection, enacted in
1995, provided as follows:
(1) There shall be no release eligibility for a person committing an offense,
on or after July 1, 1995, that is enumerated in subdivision (2). Such person
shall serve one hundred percent (100%) of the sentence imposed by the court,
less sentence credits earned and retained. However, no sentence reduction
credits authorized by § 41-21-236, or any other provision of law shall operate
to reduce the sentence imposed by the court by more than fifteen percent
(15%).
(2) The offenses to which the provisions of subpart (1) of this subsection
apply are:
(A) Murder in the first degree[.]5
Tenn. Code Ann. § 40-35-501(i) (Supp. 1995).
5
In 2020, this statute was changed to repeal subsection (i)(2)(A). Instead, the statute now includes
the following subsection that would apply to convictions of this type:
There shall be no release eligibility for a person committing first degree murder, on or after
July 1, 1995, and receiving a sentence of imprisonment for life. The person shall serve one
hundred percent (100%) of sixty (60) years less sentence credits earned and retained.
However, no sentence reduction credits authorized by § 41-21-236 or any other law, shall
operate to reduce the sentence imposed by the court by more than fifteen percent (15%).
Tenn. Code Ann. § 40-35-501(h)(2).
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Because there is no dispute that Appellant was convicted of murder in the first
degree and that this offense was committed after July 1, 1995, TDOC asserts that the
release eligibility rules of subsection (i) are applicable, rather than the release eligibility
rules in subsection (h). And under subsection (i)(1), Appellant is not eligible for release
until he has served at least fifty-one years. Indeed, the Tennessee Supreme Court has
explained the interplay of subsection (h) and (i) thusly:
[F]irst-degree murders committed either before or after July 1, 1995, carry
the same determinate sentence length of sixty years. However, for first-
degree murders committed on or after July 1, 1995, a defendant must serve
one hundred percent of sixty years less any sentence credits received, but the
sentence credits cannot operate to reduce the sentence imposed by more than
fifteen percent. Tenn. Code Ann. § 40-35-501(i). Fifteen percent of sixty
years is nine years, thus resulting in service of a minimum fifty-one-years.
As such, a defendant who commits a first-degree murder on or after July 1,
1995, may be released, at the earliest, after service of fifty-one years.
Brown v. Jordan, 563 S.W.3d 196, 200–01 (Tenn. 2018) (footnote omitted).
Appellant posits a novel argument, however. He contends that subsection (i) can
only apply to a life sentence that is imposed by the trial court judge, rather than a jury,
citing subsection (i)(1)’s multiple statements concerning the defendant’s need to serve
100% of the “sentence imposed by the court.” Tenn. Code Ann. § 40-35-501(i)(1). And
because his life sentence was imposed by the jury when it rejected the District Attorney
General’s request for the death penalty, Appellant submits that subsection (i) is
inapplicable to his conviction and calculation thereof must revert back to subsection (h).
We agree that the statutes surrounding sentencing in criminal cases are not a model
of clarity. However, several considerations weigh against Appellant’s interpretation. First,
we note that we are required to interpret statutes “as a whole, giving effect to each word
and making every effort not to interpret a provision in a manner that renders other
provisions of the same statute inconsistent, meaningless or superfluous.” Culbreath v.
First Tenn. Bank Nat’l Ass’n, 44 S.W.3d 518, 524 (Tenn. 2001) (quoting Cafarelli v.
Yancy, 226 F.3d 492, 499 (6th Cir. 2000)); see also Leab v. S & H Mining Co., 76 S.W.3d
344, 350 n.3 (Tenn. 2002) (“[W]e must avoid constructions which would render portions
of the statute meaningless or superfluous.”). In a similar vein, “it is improper to take a word
or a few words from its context and, with them isolated, attempt to determine their
meaning.” Steele v. Indus. Dev. Bd. of the Metro. Gov’t of Nashville & Davidson Cnty.,
950 S.W.2d 345, 348 (Tenn. 1997) (citing First Nat’l Bank of Memphis v. McCanless,
186 Tenn. 1, 207 S.W.2d 1007, 1009–10 (Tenn. 1948)).
While it is true that section 40-35-501(i)(1) references “sentence[s] imposed by the
court[,]” the first line of the section states in broad terms that “[t]here shall be no release
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eligibility for a person committing an offense, on or after July 1, 1995, that is enumerated
in subdivision (2).” This language is clear and provides no exception for when the sentence
is chosen by a jury rather than the trial court judge. To hold that only sentences imposed
by the trial court judge fall within the ambit of subsection (h)(1) would be to ignore the
broad and unequivocal language of subsection (i)(1) as a whole and to elevate a few words
over the clear import of the provision as a whole.
We are also required to interpret statutes that relate to the same subject matter in
pari materia, or in light of each other. See In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn.
2015) (“Statutes that relate to the same subject matter or have a common purpose must be
read in pari materia so as to give the intended effect to both.”). As Appellant points out,
Tennessee Code Annotated section 40-35-203(a) generally provides that it is the trial
court’s duty to “impose[] sentences in most cases; there are however, two exceptions: “as
provided in subsection (c) and with respect to fines as provided in § 40-35-301[.]” Tenn.
Code Ann. § 40-35-301(a) (“Except as provided in subsection (c) and with respect to fines
as provided in § 40-35-301, sentences in felony and misdemeanor cases shall be imposed
by the court.”). Subsection (c), of course, concerns capital offenses. Importantly, however,
the language of subsection (c) does not indicate that the jury “imposes” the sentence in a
capital case; instead, the jury “fix[es]” the sentence: “If a capital offense is charged and the
jury returns a verdict where death is a possibility, the jury shall fix the punishment in a
separate sentencing hearing as otherwise provided by law, unless the jury is waived as to
punishment.” Tenn. Code Ann. § 40-35-301(c) (emphasis added). The same is true of
Tennessee Code Annotated section 40-35-301, which, when referring to a fine in excess of
$50.00, refers to the jury as fixing the fine, but the judge as imposing the fine and sentence.
Tenn. Code Ann. § 40-35-301(b) (“In a case where the range of punishment includes a fine
in excess of fifty dollars ($50.00), the jury finding the defendant guilty shall also fix the
fine, if any, in excess of fifty dollars ($50.00). The jury shall report such fine with a verdict
of guilty. When imposing sentence, after the sentencing hearing, the court shall impose a
fine, if any, not to exceed the fine fixed by the jury.”) (emphasis added).
The statute specifically governing first-degree murder likewise characterizes the
jury’s role as “fix[ing] the punishment:
Upon a trial for first degree murder, should the jury find the defendant guilty
of first degree murder, it shall not fix punishment as part of the verdict, but
the jury shall fix the punishment in a separate sentencing hearing to
determine whether the defendant shall be sentenced to death, to
imprisonment for life without possibility of parole, or to imprisonment for
life.
Tenn. Code Ann. § 39-13-204(a) (Supp. 1996) (emphasis added).6 Thus, statutes on the
6
This sentence appears to be identical to the current version of section 39-13-204.
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same subject matter suggest that the duty of the jury is to “fix” the punishment, leaving the
court with a duty to impose the sentence fixed by the jury.7
Moreover, Tennessee caselaw has previously held that the term “court” in criminal
statutes may reasonably be interpreted as including both the judge and the jury.
Specifically, the Tennessee Court of Criminal Appeals quoted an earlier Tennessee
Supreme Court case that held that “the word ‘court’ as used in the statute, is not a
designation of the presiding judge, but the term is used in a collective sense, indicating the
tribunal before which the conviction should be had, and includes both court and jury.” State
v. Purkey, 689 S.W.2d 196, 200–01 (Tenn. Crim. App. 1984) (citing State v. White, 177
S.W. 478, 132 Tenn. 203, 206 (1915)); see also State ex rel. Astor v. Schlitz Brewing Co.,
104 Tenn. 715, 59 S.W. 1033, 1038 (Tenn. 1900) (“The term ‘court,’ however, was
evidently not intended as a designation of the presiding judge in his distinctive functions,
but, rather, as a collective word, indicating the tribunal before which the conviction should
be had, and including both judge and jury.”). Given the broad language of the first line of
subsection (i)(1), these authorities suggest that the Tennessee General Assembly did not
intend to exclude life sentences fixed by juries from the ambit of its new release eligibility
rules.
Appellant’s position also defies logic. Under his interpretation of section 40-35-501,
a defendant who, following a jury trial, succeeds in defending against the District Attorney
General’s choice to seek the death penalty would be rewarded by a sooner release eligibility
date than a defendant who pleaded guilty to the crime or against whom the District Attorney
General chose not to seek the death penalty. Appellant offers no argument as to what logic
would support such a distinction, nor can we discern any. “We must presume that the
legislature did not intend an absurdity.” New v. Dumitrache, 604 S.W.3d 1, 23 (Tenn.
2020) (brackets and citation omitted). We decline to frustrate the intent of the legislature
that “[t]here shall be no release eligibility” for first-degree murders and other enumerated
offences committed on or after July 1, 1995, Tenn. Code Ann. § 45-35-501(i)(1), by
adopting such an “inharmonious, illogical, and absurd” distinction solely on the basis of
whether the sentence was set by the jury or the trial court judge. New, 604 S.W.3d at 23.
Simply put, regardless of the manner in which Appellant was convicted and sentenced,
because he was convicted of first-degree murder for an offense that occurred after July 1,
1995, subsection (i)(1) is the appropriate statute for determining his release eligibility.
Appellant also raises the specter of another statute in his appellate brief: Tennessee
Code Annotated section 39-13-204(e)(2). At the time of Appellant’s offense and
conviction, this statute provided as follows:
7
Rule 32 of the Tennessee Rules of Criminal Procedure also confirms that regardless of the
sentence imposed, the judge is an integral part of imposing the sentence, as the judge must sign the
“judgment of conviction,” which includes both the “adjudication and sentence.” Tenn. R. Crim. P. 32(e).
Thus, even if the term “court” in subsection (i)(1) were interpreted to mean only a sentence put in place by
a judge, all sentences in Tennessee must be put in place by judges.
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The trial judge shall provide the jury three (3) separate verdict forms, as
specified by Tennessee Code Annotated, Sections 39-13-204(f)(1), 39-13-
204(f)(2), and 39-13-204(g)(2)(B). The jury shall be instructed that a
defendant who receives a sentence of imprisonment for life shall not be
eligible for parole consideration until the defendant has served at least
twenty-five (25) full calendar years of such sentence. The jury shall also be
instructed that a defendant who receives a sentence of imprisonment for life
without possibility of parole shall never be eligible for release on parole.
Tenn. Code Ann. § 39-13-204(e)(2) (Supp. 1996). Of course, as noted above, applying
section 40-35-501(i)(1), Appellant is not eligible for release until he serves at least fifty-
one years of incarceration.8 Appellant therefore contends that the 1995 version of section
39-13-204(e)(2) creates a liberty interest that entitles him to calculation of his release
eligibility under section 40-35-501(h)(1). Appellant further argues that section 39-13-
204(e)(2) is specific and controls over the more general section 40-35-501(i)(1).
Respectfully, we cannot agree. For one, to the extent that Appellant asserts that
section 40-35-501(i)(1) is less specific than, and should give way to, section 39-13-
204(e)(2), we disagree. Here, the question at issue is solely related to TDOC’s calculation
of Appellant’s release eligibility. The more specific statute to answer that question is
clearly section 40-35-501(i)(1), as it provides explicit guidance as to how release eligibility
is to be calculated for the offense of which Appellant was convicted.9 Section 39-13-
204(e)(2) merely states how a jury is to be instructed in a case involving a life sentence.
Section 40-35-501(i)(1) therefore controls over the more general 39-13-204(e)(2). See
Graham v. Caples, 325 S.W.3d 578 (Tenn. 2010) (“Where a conflict is presented between
two statutes, a more specific statutory provision takes precedence over a more general
provision.”).
Moreover, Appellant provides no legal authority for his assertion that section 39-
13-204(e)(2) creates a liberty interest such that TDOC must calculate Appellant’s release
eligibility via section 40-35-501(h)(1). In fact, he essentially provides no explanation of
how a liberty interest was legally created by section 39-13-204(e)(2), much less how such
an interest would result in that statute controlling over the more specific section 40-35-
8
This statute was eventually changed, albeit over two decades later, to reflect this fact. See
Tennessee Laws Pub. Ch. 528 (H.B. 511), eff. July 1, 2021 (deleting the second sentence of subsection
(e)(2) and substituting the following: “If the defendant has been found guilty of first degree murder as
described in § 39-13-202(c)(1), then the jury shall be instructed that a defendant who receives a sentence
of imprisonment for life shall not be eligible for parole consideration until the defendant has served at least
fifty-one (51) full calendar years of the sentence.”).
9
Appellant asserts that both sections 39-13-204(e) and 40-35-501(h)(1) are more specific than
section 40-35-501(i)(1). Clearly, the cited subsections of 40-35-501 are equally specific, but simply deal
with offenses committed during different time periods. See Brown v. Jordan, 563 S.W.3d at 200–01.
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501(i)(1). “It is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her, and where a party fails to develop an argument
in support of his or her contention or merely constructs a skeletal argument, the issue is
waived.” Sneed v. Bd. of Pro. Resp. of Supreme Ct., 301 S.W.3d 603, 615 (Tenn. 2010).
Any argument that this statute somehow requires that TDOC utilize section 40-35-
501(h)(1) on the basis of due process is therefore waived.10
Finally, even if we were to assume that a harmful error could be shown in how the
jury was instructed in his case,11 Appellant has offered no argument or authority as to how
such an alleged error can be corrected in a declaratory judgment action over twenty years
after his conviction. As this Court recently explained: “This Court does not have
jurisdiction in this declaratory judgment proceeding to alter the Criminal Court’s
judgment or make any determination concerning the illegality or validity of the Criminal
Court’s judgment.” Bond v. Tennessee Dep’t of Correction, No. M2019-02299-COA-R3-
CV, 2021 WL 1200091, at *4 (Tenn. Ct. App. Mar. 30, 2021), appeal dismissed (Tenn.
July 9, 2021) (citing Sledge v. Tennessee Dep’t of Correction, No. M2016-01664-COA-
R3-CV, 2017 WL 4331038, *2 (Tenn. Ct. App. Sept. 28, 2017) (determining that issues
concerning the validity of a criminal court’s judgment were not within the scope of this
Court’s review)). The sole issue in this case is whether TDOC is correctly calculating
Appellant’s sentence under section 40-35-501. We conclude that it is. As such, the trial
court did not err in granting summary judgment in favor of TDOC.
V. CONCLUSION
The judgment of the Davidson County Chancery Court is affirmed, and this cause
is remanded to the trial court for further proceedings as may be necessary and consistent
with this Opinion. Costs of this appeal are taxed to Appellant, Anthony Perry, for which
execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
10
In his reply brief, Appellant also raises substantive due process, Double Jeopardy, Equal
Protection, and the Ex Post Facto clause. Other than a cursory mention of Equal Protection, Appellant did
not mention these concepts in his initial brief. Generally, reply briefs are not vehicles for raising new issues.
See Augustin v. Bradley Cty. Sheriff’s Off., 598 S.W.3d 220, 227 (Tenn. Ct. App. 2019). Moreover, it
takes more to invoke a sound constitutional argument than reciting provisions of the Constitution as
talismans. We therefore will not tax the length of this Opinion by addressing these late raised and/or
unsupported invocations. See Sneed, 301 S.W.3d at 615.
11
Certainly, Appellant’s brief does not point to any place in the record where we can glean how
the jury in his 1999 criminal trial was instructed.
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