                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE


                                                          FILED
                                      FOR PUBLICATION

STATE OF TENNESSEE,              )    Filed: June 21, 1999
                                 )
      Plaintiff/Appellee,        )    MCMINN COUNTY June 21, 1999
                                 )
v.                               )    Hon. Carroll L. Ross,
                                 )    Judge
J. C. MEYER,                     )
                                                      Cecil Crowson, Jr.
                                 )    Supreme Court
      Defendant/Appellant.       )    No. 03-S01-9812-CR-00140
                                                     Appellate Court Clerk




FOR APPELLANT:                        FOR APPELLEE:

Charles M. Corn                       Michael E. Moore
District Public Defender              Solicitor General
Cleveland, TN
                                      Elizabeth B. Marney
                                      Assistant Attorney General
                                      Nashville, Tennessee

                                      Jerry N. Estes
                                      District Attorney General
                                      Tenth Judicial District

                                      Richard Newman
                                      Assistant District Attorney
                                      Athens, TN




                             OPINION


TRIAL COURT AND
COURT OF CRIMINAL APPEALS REVERSED;
CASE REMANDED TO TRIAL COURT.                              DROWOTA, J.
       In this appeal, we consider whether erroneous instructions read to the jury

amounted to harmless error. The trial court correctly instructed the jury that if the

Defendant were convicted of rape of a child, his sentence would range from twenty-

five to forty years for each count. However, the trial court erroneously instructed the

jury that a person convicted of rape of a child would have to serve 5.73 years before

his or her earliest release eligibility date, when in fact a person so convicted must

serve the entire sentence undiminished by any sentence reduction credits. After he

was convicted of two counts of rape of a child, the Defendant appealed to the Court

of Criminal Appeals. The Court of Criminal Appeals found that, although the jury

instruction was incorrect, the error was harmless. On appeal to this Court, the State

now concedes that the trial court’s error was, in fact, harmful. We agree and remand

this case to the trial court for a new trial.




                         FACTS & PROCEDURAL HISTORY

       In 1996, the Defendant was charged with four counts of rape of a child,

stemming from events occurring between January and May 1995, in which the

Defendant allegedly vaginally and orally raped his girlfriend’s eight-year-old child.

Two counts were later dismissed and the Defendant was tried in McMinn County in

October of 1996. Following closing arguments, the Defendant requested the trial

court to instruct the jury on possible penalties for the charged offense as well as




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lesser included offenses. See Tenn. Code Ann. §§ 40-35-201(b) (Supp. 1995). 1 The

jury was charged as follows:


                We’re gonna talk now about the range of punishment of the
         allegations here today. The jury will not attempt to fix any sentence.
         However, you may weigh and consider the meaning of a sentence of
         imprisonment, and set a fine in the amounts indicated below, if you
         wish to do so. The range of punishment for the crimes involved herein
         are as follows:

                25 to 40 years in the state penitentiary for the crime of rape of
         a child, and a fine of some amount not exceeding $50,000.

               12 to 20 years in the state penitentiary for the crime of
         aggravated sexual battery, and a fine in some amount not exceeding
         $25,000.

                You are further informed that the minimum number of years a
         person sentenced to imprisonment for the offense of rape of a child
         must serve before reaching the earliest release eligibility date is 5.73
         years. You are further informed that the minimum number of years a
         person sentenced to imprisonment for the offense of aggravated sexual
         battery must serve before reaching the earliest release eligibility date
         is 2.75 years. Whether a defendant is actually released from
         incarceration on the date when first eligible for release is a
         discretionary decision made by the Board of Parole for the State of
         Tennessee and is based on many factors. The Board of Parole has
         the authority to require a defendant to serve the entire sentence
         imposed by the Court.

The jury convicted the Defendant of two counts of rape of a child, and the trial court

denied the Defendant’s motion for a new trial.

          The Defendant raised several issues on appeal to the Court of Criminal

Appeals, including the argument that the trial court erred by instructing the jury that



         1
          This prov ision p rovid es th at for all non -cap ital crim inal ca ses , if requested, the trial court “sha ll
cha rge th e pos sible penalties for the offense charged and all lesser included offenses.” Tenn. Code
Ann. § 40-35-201(b)(1). This instruction “shall include an approximate calculation of the minimum
number of years a p erson s entenc ed to im prisonm ent . . . must serve befo re rea chin g suc h per son ’s
earliest relea se eligibility date.” Id. § 40-35-201(b)(2)(A)(i). This provision was recently repealed by
the General Assembly in 1998, so that for all non-capital criminal trials subsequent to May 19, 1998,
the “judge shall not instruct the jury, nor s hall the attorn eys be pe rmitted to comment at any time to the
jury, on possible penalties for the offense charged nor all lesser included offenses.” 1998 Tenn. Pub.
Acts ch. 1041, § 1; Tenn. C ode Ann. § 40-35-201 (Supp. 1998).

                                                          -3-
the Defendant would be eligible for release following a conviction of child rape upon

serving 5.73 years of his sentence. Despite finding that the trial judge’s instruction

was incorrect, the Court of Criminal Appeals found the error to be harmless due to

“substantial” evidence in support of a conviction. Holding that the other issues raised

by the Defendant were without merit, the Court of Criminal Appeals affirmed the

judgment of the trial court. Subsequently, the Defendant appealed to this Court,

raising the sole contention that the trial court’s erroneous jury charge constituted

reversible error and, thus, the Defendant is entitled to a new trial.




                                    DISCUSSION

       It is beyond dispute that the trial court erred by instructing the jury that the

Defendant, if convicted of one count of rape of a child, would be eligible for release

after serving 5.73 years in prison. Tennessee Code Annotated §§ 40-35-501(i)(3)

(Supp. 1995) and 39-13-523(b) (Supp. 1995) provide that a defendant convicted of

child rape is not eligible for early release and, thus, must serve the entire sentence

imposed. Relying on our decision in State v. Cook, 816 S.W.2d 322 (Tenn. 1991),

the State now concedes that the trial court’s erroneous jury instruction constitutes

reversible error and that the defendant is entitled to a new trial. We agree.



       In Cook, the defendant, charged with multiple counts of aggravated rape and

aggravated sexual battery, requested the trial judge to instruct the jury on possible

punishment for the charged offenses and lesser included offenses in accordance with

Tenn. Code Ann. § 40-35-201(b). The trial court erroneously instructed the jury with

regard to Range I sentences when, in fact, more severe Range II sentences were

                                          -4-
applicable. The defendant was convicted of several counts, the trial court imposed

a sentence in accordance with Range I, and both parties appealed. The Court of

Criminal Appeals affirmed the convictions but ordered a new sentencing hearing,

agreeing with the State that the trial judge should have sentenced the defendant as

a Range II offender. Cook appealed to this Court, contending that the CCA erred in

ordering that he be sentenced as a Range II offender, when the jury was only

instructed of his possible punishments as a Range I offender. 2 We agreed with the

defendant and ordered a new trial.                      In so holding, we recognized that no

constitutional error was involved, that a statutory right deprivation was the basis of

error, and that “actual deprivation would occur upon remand for resentencing, when,

under the Court of Criminal Appeals' judgment, the defendant would be sentenced

to punishment not known to or contemplated by the convicting jurors.” Cook, 816

S.W.2d at 326. Accordingly, we reversed Cook’s convictions and remanded for a

new trial, stating that “whatever rights or benefits the Legislature had in mind for the

defendant when it passed Tenn. Code Ann. § 40-35-201(b) would be lost if the

defendant were to be sentenced to punishments greater than what the jury finding

guilt was instructed would be imposed.” Id. at 327.




                                              CONCLUSION

         In light of our holding in Cook, we agree with the Defendant and the State that

the Defendant was prejudiced by the trial court’s erroneous instruction.                                   It is



         2
          An amicus curiae party in Cook argued that “if the jury is mistakenly instructed that a
con viction will res ult in a sh orter sent enc e tha n in fa ct will be imposed, the likelihood of conviction of
the crime charged in the indictment increases and the chance that the jury will convict of a lesser
included offense decrease s comm ensurately.” Cook, 816 S.W .2d at 325 .

                                                      -5-
conceivable that the Defendant would have been convicted of a lesser offense had

the jury known that the Defendant would not be eligible for early release.

Accordingly, we reverse the decision of the Court of Criminal Appeals which found

the trial court’s error to be harmless, see Tenn. R. App. P. 36(b), and remand this

case to the trial court for a new trial.



       Costs on appeal are taxed to the State of Tennessee.




                                     _____________________________________
                                     FRANK F. DROWOTA, III,
                                     JUSTICE




Concur:

Anderson, C.J.
Birch, Holder, Barker, JJ.




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